Skip to main content

Full text of "The German War Book: Being "The Usages of War on Land""

See other formats


This is a digital copy of a book that was preserved for generations on library shelves before it was carefully scanned by Google as part of a project 

to make the world's books discoverable online. 

It has survived long enough for the copyright to expire and the book to enter the public domain. A public domain book is one that was never subject 

to copyright or whose legal copyright term has expired. Whether a book is in the public domain may vary country to country. Public domain books 

are our gateways to the past, representing a wealth of history, culture and knowledge that's often difficult to discover. 

Marks, notations and other maiginalia present in the original volume will appear in this file - a reminder of this book's long journey from the 

publisher to a library and finally to you. 

Usage guidelines 

Google is proud to partner with libraries to digitize public domain materials and make them widely accessible. Public domain books belong to the 
public and we are merely their custodians. Nevertheless, this work is expensive, so in order to keep providing tliis resource, we liave taken steps to 
prevent abuse by commercial parties, including placing technical restrictions on automated querying. 
We also ask that you: 

+ Make non-commercial use of the files We designed Google Book Search for use by individuals, and we request that you use these files for 
personal, non-commercial purposes. 

+ Refrain fivm automated querying Do not send automated queries of any sort to Google's system: If you are conducting research on machine 
translation, optical character recognition or other areas where access to a large amount of text is helpful, please contact us. We encourage the 
use of public domain materials for these purposes and may be able to help. 

+ Maintain attributionTht GoogXt "watermark" you see on each file is essential for in forming people about this project and helping them find 
additional materials through Google Book Search. Please do not remove it. 

+ Keep it legal Whatever your use, remember that you are responsible for ensuring that what you are doing is legal. Do not assume that just 
because we believe a book is in the public domain for users in the United States, that the work is also in the public domain for users in other 
countries. Whether a book is still in copyright varies from country to country, and we can't offer guidance on whether any specific use of 
any specific book is allowed. Please do not assume that a book's appearance in Google Book Search means it can be used in any manner 
anywhere in the world. Copyright infringement liabili^ can be quite severe. 

About Google Book Search 

Google's mission is to organize the world's information and to make it universally accessible and useful. Google Book Search helps readers 
discover the world's books while helping authors and publishers reach new audiences. You can search through the full text of this book on the web 

at |http: //books .google .com/I 



f » 



First BoiTioif 

Januarp, WS 
Januarf, lOtS 













*^ Certain scTcritiei are indispensable in war, najr, more, the only 
true humanity Terjr often lies in a ruthless application of them.** 

— Thi German War- Book (p. $$) 






^ TO 
















V. EPILOGUE - - - - - - - - 49 




Regular Army — ^Irregular Troops — People's Wars 
and National Wars. 



X. Annihilation, slaughter, and wounding of the hostile 
combatants : 
Killing of enemy combatants— Lawful and unlawful 

3. Capture of enemy combatants : 

Modern conception of war captivity — ^Who is subject 
to it ? — Point of view for treatment of prisoners of war 
— Right to put prisoners to death — Termination of the 
captivity — Transport of Prisoners. 





3. Sieges and Bombardments: 

(a) Fortresses and strong places : Notification of 
bombardment — Scope of bombardment — Treatment of 
civil population within an enemy's fortress — Diploma- 
tists of neutral States within a besieged fortress— Treat- 
ment of the fortress after storming it. {b) Open towns 
and villages. 



Cunning and deception — ^Lawful and unlawful 


Modern view of non-efiective combatants — Geneva 
Convention — Hyenas of the battlefield. 


Bearers of flags of truce — Treatment of them — 
Forms as to their reception. 


The notion of a spy — Treatment. 


General — ^Authorizations — ^The representatives of 
the Press. 








General Notions — Rights — ^Duties — Hostages— -Ju- 
risdiction in enemy's provinces when occupied — ^War 
rebellion and War treason. 

11. PRIVATE PROPERTY IN WAR - - - - 124 




Real and Personal State Property — Real and 
Personal Private Property. 


General — ^Legislation — Relation of inhabitants to 
the Provisional Government— -Coorta — Officials— Ad- 
ministration — Railways. 

Idea of neutrality — ^Duties of neutral States — 
Contraband of war — Rights of neutral States. 



What is a State Of War 31 

Active Persons and Passive ... ... 51 

That War is no respecter of Persons... 93 

The Usages of War 53 

Of the futility d Written Agreements 

as Scraps of Paper 93 

The ** flabby emotion " of Humanitar- 

ian i s m ... ... ... ... 54 

Cruelty is often " the truest hu- 
manity" 55 

The Perfect Officer 55 

Who are Combatants and who are not 57 

The Irregular 57 

Bach State must decide for itself ... 58 

The necessity of Authorisation ... 59 

Exceptions which prove the rule ... 59 

The Free Lanoe 59 

Modem views ... ... ... ... 60 

The German Military View 60 

Tht Levee en tnasu 6a 

The Hague Regulations will not do ... 63 
A short way with the Defender of his 

Country ... ... ... ... 63 

Vicdenoe and Cunning 64 

How to make an end of the Enemy ... 65 

The Rules of the Game 65 

Coloured Tnxms are ** Blacklegs" ... 66 

Prisoners of War 67 

Va VictisI 67 

The Modem View 68 

Prisoners of War are to be Honourably 

treated ... ... ... ... 68 

Who may be made Prisoners 69 

The Treatment of Prisoneit of War... 70 

Their c o n fin e m ent ... ... ... 70 

The Msoner and his Taskmaster ... 71 

Flifl^t ... 71 

s^tK% ... ... ... ... ... /% 

Jitters ... ... ... ... ... y% 

Ptasooal belongings 7* 

The Information Bureau 73 

When Prisoners may be put to Death 73 

R^nisals" ... ... ... ... 74 

One must not be too scrnpolous ... 74 

The e nd of Captivity 75 

•"•ivio ••# ••• ••• ••• ••■ /3 

Exchange of Prisoners 77 

Removal of Prisoners 77 

Pair Game 78 


Of making the most of one's oppor- 
tunity 78 

Spare the Churches ... ... ... 79 

A Bombardment is no Respecter of 

Persons ... ... ... ... 79 

A timely severity 80 

"Undefended Places" 81 

Stratagems ... ... 83 

The Apophthegm of Frederick the 

Great... «*• ... ... ... 83 

What are " dirty tricks " ? 84 

Of False Uniforms 83 

The Corruption of others may be 

useful 85 

And Murder is one <rf the Fine Arts... 86 
The ugly Is often expedient, and 
that it is a mistake to be too nice- 
minded 86 

The sanctity of the Geneva Convention 87 

The " Hyenas of the Battlefield " ... 88 

Flags of Trace 89 

The Etiquette of Flags ol TVuoe ... 91 

The Envoy 91 

His approadi 91 

The Challenge—" Wer da?" ... 91 

His reception 93 

He dismounts 93 

Let his Yea be Yea, and his Nay, Nay 93 

The daty of his Interlocutor 93 

The impatient Envoy 93 

The French again 93 

The Scout ... 94 

The Spy and his short shrift 94 

What is a Spy? 93 

Of the essentials of Espionage ... 93 

Accessories are Principals 96 

The Deserter is faithleis, and the 

Renegade false 97 

But both may be useful 97 

"Followers" ... 98 

The War Correspdodent : his import- 

MIQO ••• v** ••• «•• ■>■ 99 

His presence is desirable 99 

The ideal War Correspondent ... 99 
The Etiquette of the War Corres- 
pondent ... ... ... ... xoo 

How to tell a Non-Combatant ... zos 
That Faith must be kept even with an 

Enemy ... ... ... ... 104 



'.. *' 


Bxehange ol PrisoiMn Z04 

CapitnlatioDt— .they cannot b« too 

meticulous •«< *■• «.• •*. X05 

Of tbe White Flag 107 

Oi Sftle<CoDdncts «•• ..• ... zo7 
01 AzrnisticaB ... ... ... zo8 

The Civil Population is not to be 

regarded as an enemy 113 

They must not be molested 114 

Theb duty 1x4 

Of the humanity of the Gennans and 

the barbarity of the French ... 1x4 

What the Invader may do xx6 

A man may be compelled to betray 

his Conntey ... ... ... ... 1x7 

And worn ... ... ... ... xx8 

Of forced labour xx8 

Of a certain harsh measure and its 

jttst i fi c ati< m ... ... ... ... xx8 

Hostages ... ... ... ... 1x9 

A ** harsh and cnxd measure '* 1x9 

But it was "successful" xso 

War Rrt>dlion xax 


War Treason" and UnwilHog Guides zss 
Another drolorable necessity ... zss 

Of Private Froperty and its imrauni- 

WC 8 »•• ••• ••• ••• ••• ••* ••* *^4 

Of German behaviour xso 

Tbe gentle Hun and the looking- 

glvl^B ... ... ... ... ... XS^ 

Bcioty ... ... ... ... ... xaS 

The State realty may be used but 

must not be wasted lag 

State Penonalty is at the mercy 

of the victor xs^ 

Rrivate realty 130 

Private personalty X30 

** Ch o ses in action" X31 

Phmdoring is wicked 131 

Re<|uisitiooa ••• ... .•> ••• 133 
How the doeDe German leaxnt the 

"better way" 133 

To exhaust the country is depkrabla^ 
but we mean to do it 

" Buccaneering levies " 

How to administer an Invaded Country 

The Laws remain — with qualificatioa 

The Inhabitants must obey 

Martial Law ... ... ... ... 

Fiscal Policy 

Occupation must be real, not fictitious 

What neutrality means 

A neutral cannot be all things to all 
men; therefore he must be notiiing 
to any of them 

But there are limits to this detach- 

lllCTl^ ••• ••• ••# ••• ••• 

Duties of the neutral 

Belligerents must be warned off 
The neutral must gnard its inviolable 
frontiers. It must intern tbe Xres- 

pS986X8 ••• ••• ••• ••• 

Unneutral service 
The " sinews of 

ligerents ... ... ... 

Contraband of War 

Good business 

Foodstuffs ... ... ... 

Contraband on a smaU scale... 

And on a large scale 

The practice differs 
Who may 

Who may not 

Rights of the neutral 

The neutral has the right to be left 

4UVU6 •■• •«• ••• ••■ ••• 

Neutral territory is sacred 

The neutral may resist a violation of 
its territory *'with all the means 
in its power" 

Neutrality is presumed 

The property of neutrals 

Diplomatic intercourse 



pas s - "the Sick and the 
















The text of this book is a literal and integral transla- 
tion of the Kriegsbrauch im Landkriege issued and re- 
issued by the German General StafE for the instruction 
of German officers. It is the most authoritative work 
of its kind in Germany and takes precedence ovei all 
other publications whether military or legal, alike over 
the works of Bemhardi the soldier and of HoltzendorfE 
the jurist. As will be shown in detail in the critical 
introduction, the Hague Conventions are treated by the 
authors as little more than '" scraps of paper " — the 
only " laws " recognized by the German S\s& are the 
military usages laid down in the pages of the Manual, 
and resting upon "a calculating egotism" and injudi- 
cious " form of reprisals." 

I have treated the original text with religious respect, 
seeking neither to extenuate nor to set down aught in 
malice. That text is by no means elegant, but, having 
regard to the profound significance of the views therein 
expressed or suggested, I have thought it my duty as a 
translator to sacrifice grace to fidelity. Text, footnotes, 
and capital headlines are all literally translated iii their 
entirety. When I have added footnotes of my own 
they are enclosed in square brackets. The maiginal 

• •• 



notes have been added in order to supply the reader 
with a continuous clue. In the Critical Introduction 
which precedes the text I have attempted to show the 
intellectual pedigree of the book as the true child of 
the Prussian military tradition, and to exhibit its 
degrees of affinity with German morals and with Ger- 
man policy— with "Politik" and "Kultur." I have 
therefore attempted a short study of German diplomacy, 
politics, and academic teaching since 1870, with some 
side glances at the writings of German soldiers and 
jurists. All these, it must be remembered, are integ- 
rally related; they all envisage the same problem. 
That problem is War. In the German imagination 
the Temple of Janus is never closed. Peace is but a 
suspension of the state of war instead of war being a 
rude interruption of a state of peace. The temperament 
of the German is saturated with this bdligerent emotion 
and every one who is not with him is against him. An 
unbioken chain links together Clausewitz, Bismarck, 
Treitschke, von der Goltz, Bemhardi, and the official 
exponents of German policy to-day. The teaching of 
Clausewitz that war is a continuation of policy has 
simk deeply into the German mind, with the result that 
their conception of foreign policy is to provoke » con- 
stant apprehension of war. 

The first part of the Introdu tion appears in piint 
for the first time. In the second and third parts I have 
incorporated a short essay on Treitschke which has 
appeared in the pages of the Nineteenth Century (in 
October last), a criticism of German diplomacy and 
politics which was originally contributed to the Specta- 
tor in 1906 and a study of the German professors which 


was published, under the title of "The Academic Garri- 
son," in the Titnes Supplement of Sept. ist, 1914. I 
desire to thank the respective Editors for their kindness 
in allowing me to reproduce here what I had already 
written there. 

January, 1915. 





The ideal Prince, so Machiavelli has told us, need not, 
and indeed should not, possess virtuous qualities, but 
he should always contrive to appear to possess them.* 
The sombre Florentine has been studied in Germany 
as he has been studied nowhere else and a double portion 
of his spirit has descended on the authors of this book. 
Herein the perfect officer, like the perfect Prince, is 
taught that it is more impoi tant to be thought humane 
than to practise himianity ; the former may probably 
be useful but the latter is certainly inconvenient. 

Hence the peculiar logic of this book which consists 
for the most part in ostentatiously lajdng down unim- 
peachable rules and then quietly destrojdng them by 
debilitating exceptions. The civil population of an 
invaded country —the young officer is reminded on one 
page — ^is to be left undisturbed in mind, body, and estate, 
their honour is to be inviolate, their lives protected, 
and their property secure. To compel them to assist 
the enemy is brutal, to make them betray their own 
country is inhuman. Such is the general proposition. 
Yet a little while and the Manual descends to particulars. 
Can the officer compel the peaceful inhabitants to give 
information about the strength and disposition of 

*// Principe, Cap. i8. 


his country's forces ?* Yes, answers the German War- 
Book, it is doubtless regrettable but it is often necessary. 
Should they be exposed to the fire of their own troops ?• 
Yes ; it may be indefensible, but its " main justifica- 
tion " is that it is " successful." Should the tiibute of 
supplies levied upon them be proportioned to their 
ability to pay it ?■ No ; " this is all very well in theory 
but it would rarely be observed in practice." Should 
the forced labour of the inhabitants be limited to works 
which are not designed to injure their own country ?* 
No ; this is an absurd distinction and impossible. 
Should prisoners of war be put to death ? It is always 
"ugly" but it is sometimes expedient. May one hire 
an assassin, or corrupt a citizen, or incite an incendiary ? 
Certainly ; it may not be reputable (anstdndig) , and 
honour may fight shy of it, but the law of war is less 
"touchy" \empfindUch). Should the women and chil- 
dren — ^the old and the feeble— be allowed to depart 
before a bombardment begins ? On the contrary ; 
their presence is greatly to be desired {ein Vortheil) — it 
makes the bombardment all the more effective. Should 
the civil population of a small and defenceless country 
be entitled to claim the right, provided they carry their 
arms openly and use them honourably, to defend their 
native land from the invader ?"• No; they act at 

^ Not the Hague Regulations^ Art. 44 : " Any compulsion by a 
belligerent on the population of occupied territory to give informa- 
tion as to the army of the other belligerent, or as to his means of 
defence, is prohibited." 

A No! the English Manual of Military Law, ch. xiv, sec. 463. 

• Yes! the Hague Regulations, Art. 52 : " They must be in pro- 
portion to the resources of the country " ; and to the same effect 
the English Manual of Military Law, sec. 416, and the British 
Requisitioning Instructions. 

^ Yesl the Hague Regulations, Arts. 23 and 52 ; also Actes et 
Documents (of the Conference), III, p. 120. 

• Yes! the Hague Regulations, Art. 2 ; " The population of a 
territory which has not been occupied who on the approach of the 
enemy spontaneously take up arms to resist the invading troops, 
without having had time to organize themselves in accordance with 
Article i, shall be regarded as belligerents." 


their peril and must, however sudden and wanton the 
invasion, elaborate an organization or they will receive 
no quarter.^ 

We might multiply examples. But these are suffi- 
cient. It will be obvious that the German staff are 
nothing if not casuists. In their brutality they are the 
true descendants of Clausewitz, the father of Prussian 
military tradition. 

" Laws of war are self-imposed restrictions, almost 

imperceptible and hardly worth mentioning, termed 

* usages of war. * Now philanthropists may easily 
imagine that there is a skilful method of disarming and 
overcoming an enemy without causing great bloodshed, 
and that this is the proper tendency of the art of war. 
However plausible this may appear, still it is an error 
which must be extirpated, for in such dangerous things 
as war the errors which proceed from the spirit of 
benevolence are the worst. . . . To introduce into the 
philosophy of^ war itself a principle of moderation 
would be an absurdity. . . . War is an act of violence 
which in its application knows no bounds."* 

The only difference between Clausewitz and his 
lineal successors is not that they are less brutal but 
that they are more disingenuous. When he comes to 
discuss that form of living on the coimtry which is 
dignified by the name of requisitions, he roundly says 
they should be enforced 

** by tbe fear of responsibility, punishment, and ill 
treatment which in such cases presses like a general 
weight on the whole population. . . . This resource 
hats no limits except those of the exhaustion, im- 
poverishment, and devastation of the whole country."* 

* The whole of these propositions, revolting as they may appear, are 
taken almost literally from the text of the War-Book, to which I 
refer the reader for their context. 

* Clausewitz : Vom Kriege I, Kap. i (2). 

■ Ihid. V, Kap. 14 (3). Clausewitz's definition of requisitions is 
" seizing everything which is to be found in the country, without 
regard to meutn and tuum.** The German War-Book after much 
prolegomenous sentiment arrives at the same conclusion eventually. 


Our War-Book is more discreet but not more merciful. 
Private property, it begins by sajdng, should always 
be respected. To take a man's property when he is 
present is robbery ; when he is absent it is " downright 
burglary." But if the "necessity of war" makes it 
advisable, " every sequestration, every appropriation, 
temporary or permanent, every use, every injury and all 
destruction are permissible." 

It is, indeed, unfortunate that the War-Book when 
it inculcates " f rightfulness " is never obscure, and that 
when it advises forbearance it is always ambiguous. 
The reader must bear in mind that the authors, in 
common with their kind in Germany, always enforce 
a distinction between Kriegsmanier and Kriegsraison,y 
between theory and practice, between the rule and the 
exception. That in extreme cases such distinctions 
may be necessary is true ; the melancholy thing is that 
German writers make a system and indeed a virtue of 
them. In this respect the jurists are not appreciably 
superior to their soldiers. Brutality is bad, but a 
pedantic brutality is worse in proportion as it is more 
reflective. Holtzendorff's Handbuch des Volkerrechis, 
than which there is no more authoritative book in the 
legal literature of Germany, after pages of sanctification 
of " the natural right " to defend one's fatherland 
against invasion by a levie en masse, terminates the 
argument for a generous recognition of the combatant 
status of the enemy with the melancholy qualification, 
"unless the Terrorism so often necessary in war does not 
demand the contrary."* 

To "terrorize" the civil population of the enemy is, 

* Kriegsraison I have translated as " the argument of war." 
" Necessity of war '* is too free a rendering, and when necessity is 
urged *' nbtig '* or " NotwendigkMt " is the term used in the original. 
Kriegsmanier is literally the ** fashion of war " and means the cus- 
tomary rules of which Kriegsraison makes havoc by exceptions. 

* Holtzendorff, IV, 378. 


indeed, a first principle with German writers on the 
Art of War. Let the reader ponder carefully on the 
sinister sentence in the third paragraph of the War- 
Book and the illuminating footnote from Moltke with 
which it is supported. The doctrine — ^which is at the 
foimdation of all such progress as has been made by 
international law in regularizing and humanizing the 
conduct of war — ^that the sole object of it should be 
to disable the armed forces of the enemy, finds no coun- 
tenance here. No, say the German staff, we must seek 
just as much {in gleicher Weise) to smash {zerstoren) 
the total " intellectual " (geistig) and material re- 
sources of the enemy. It is no exaggeration to inter- 
pret this as a counsel not merely to destroy the body 
of a nation, but to ruin its soul. The " Geist " of a people 
means in German its very spirit and finer essence. It 
means a good deal more than intellect and but a little 
less than religion. The " Geist " of a nation is "the 
partnership in all science, the partnership in all art, 
the partnership in every virtue, and in all perfection," 
which Burke defined as the true conception of the State. 
Hence it may be no accident but policy which has caused 
the Germans in Belgium to stable their horses in 
churches, to destroy municipal palaces, to defile the 
hearth, and bombard cathedrals. All this is scientifi- 
cally calculated " to smash the total spiritual re- 
sources " of a people, to humiliate them, to stupefy 
them, in a word to break their " spirit." 

Let the reader also study carefully a dark sentence 
in that section of the War-Book which deals with " Cun- 
ning and Deceit." There the German officer is 
instructed that " there is nothing in international law 
against " (steht volkerrechtlich nichts entgegen) the 
exploitation of the crimes of third persons, " such as 
assassination, incendiarism, robbery and the like," to 
the disadvantage of the enemy. "There is nothing in 


international law against it I" No, indeed. Thei»e 
are many things upon which international law is silent 
for the simple reason that it refuses to contemplate 
their possibility. It assumes that it is dealing not 
with brutes but with men. International law is the 
etiquette of international society, and society, as it has 
been gravely said, is conducted on the assumption that 
murder will not be committed. We do not carry revol- 
vers in our pockets when we enter our clubs, or finger 
them when we shake hands with a stranger. Nor, to 
adopt a very homely illustration, does any hostess 
think it necessary to put up a notice in her drawing- 
room that guests are not allowed to spit upon the floor. 
But what should we think of a man who committed 
this disgusting offence, and then pleaded that there was 
nothing to show that the hostess had forbidden it? 
Human society, like political society, advances in pro- 
portion as it rests on voluntary morality rather than 
positive law. In primitive society everything is 
"taboo," because the only thing that wiQ restrain 
the undisciplined passions of men is fear. Can it be 
that this is why the traveller in Germany finds every- 
thing " verboten," and that things which in our own 
country are left to the good sense and good breeding 
of the citizen have to be oflSciously forbidden ? Can 
it be that this people which is always making an osten- 
tatious parade of its "culture" is stiQ red in tooth and 
claw? When a man boasts his breeding we instinc- 
tively suspect it; indeed the boast is itself ill-bred. 
If the reader thinks these reflections uncharitable, let 
him ponder on the treatment of Belgium. 

It will be seen therefore that the writers of the War- 
Book have taken to heart the cynical maxim of Machia- 
velli that " a Prince should understand how to use well 
both the man and the beast." We shall have occasion 
to observe later in this introduction that the same 


maxim runs like Ariadne's thread through the labyrinth 
of German diplomacy. Machiavelli's dark counsel 
finds a responsive echo in Bismarck's cynical declara- 
tion that a diplomatic pretext can always be found for 
a war when you want one. When these things are 
borne in mind the reader will be able to understand 
how it is that the nation which has used the strongest 
language^ about the eternal inviolabiUty of the neutral- 
ity of Belgium should be the first to violate it. 

The reader may ask, What of the Hague Conven- 
tions? They are international agreements, to which 
Germany was a party, representing the fruition of 
years of patient endeavour to ameliorate the horrors 
of war. If they have any defect it is not t^t they go 
too far but that they do not go far enough. But of 
them and the humanitarian movement of which they 
are the expression, the German Staff has but a very 
poor opinion. They are for it the crest of a wave of 
' ' Sentimentalism and flabby emotion. ' ' (Sentimenkditdt 
und weicheler Gefilhlsschwdrmerei.) Such movements, our 
authors declare, are " in fundamental contradiction with 
the nature and object of war itself." They are rarely 
mentioned in this book and never respectfully. The 
reader will look in vain for such an incorporation of the 
Hague Regulations in this official text-book as has been 
made by the Eilglish War Office in our own Manual of 
Military Law. Nor is the reason far to seek. The German 
Government has never viewed with favour attempts to 
codify the laws and usages of war. Amiable sentiments, 
prolegomenous resolutions, protestations of "culture" 
and " humanity," she has welcomed Mdth evangelical 
fervour. But the moment attempts are made to subject 
these volatile sentiments to pressure and liquefy them in 
the form of an agreement, she has protested that to 

^ In Holtzendorfi's Handbuch des ViUkirr$chts, passim. For 
references, see below. 


particularize would be to " enfeeble humane and 
civilizing thoughts."^ Nothing is more illuminating 
as to the respective attitudes of Germany and England 
to such international agreements than the discussions 
which took place at the Hague Conference of 1907 on 
the desirability of imposing in express terms restric- 
tions upon the laying of submarine mines in order to 
protect innocent shipping in neutral waters. The 
representatives of the two Powers agreed in admitting 
that it did not follow that because the Convention had 
not prohibited a certain act it thereby sanctioned it. 
But whereas the English representatives regarded this 
as a reason why the Convention could never be too 
explicit,* the spokesman of Germany urged it as a reason 
why it could never be too ambiguous. In the view of 
the latter, not international law but " conscience, good 
sense, and the sentiment of duties imposed by the princi- 
pies of humanity will be the surest guides for the conduct 
of soldiers and sailors and the most efficacious guaran- 
tees against abuse."' Conscience, " the good German 
Conscience," as a German newspaper has recently 
called it, is, as we have seen, an accommodating monitor, 
and in that forum there are only too many special 
pleaders. If the German conscience is to be the sole 
judge of the lawfulness of German practices, then it is a 
clear case of "the right arm strikes and the left arm is 
called upon to decide the lawfulness of the blow." It is, 
indeed, difficult to see, if Baron von Bieberstein's view 
of international agreements be the right one, why there 
should be any such agreements at all. The only rule 
which results from such an Economy of Truth woidd be : 
All things are lawful but all are not expedient. And 
such, indeed, is the conclusion of the German War-Book. 

^ Baron Marschall von Bieberstein. Actes et Documents (1907), 
J. 86. 
< Acies et Documents (1907), I, 281 (Sir Edward Satow). 
* Ibid,, p. 282 (Baron Marschall von Bieberstein), and p. 86. 


The cynicism of this book is not more remarkable 
than its affectation. There are pages in it of the most 
admirable sentiment — ^witness those about the turpi- 
tude of plundering and the inviolability of neutral 
territory. Taken by themselves, they form the most 
scathing denunciation of the conduct of the German 
army in Belgium that could well be conceived. Let 
the reader weigh carefully the following : 

Movable private property which in earlier times was 
the incontestable booty of the victor is held by modem 
opinion to be inviolable. The carrying away of gold, 
watches, rings, trinkets, or other objects of value is 
therefore to be regarded as robbery, and correspondingly 

No plundering but downright burglary is it for a man 
to take away things out of an unoccupied house or at a 
time when the occupant happens to be absent. 

Forced contributions (Kriegschatzungen) are de- 
nounced as "a form of plundering" rarely, if ever, to be 
justified, as requisitions may be, by the plea of neces- 
sity. The victor has no right, the Book adds, to prac- 
tise them in order to recoup himself for the cost of the 
war, or to subsidize an operation against the nation 
whose territory is in his occupation. To extort them 
as a ransom from the violence of war is equally unjus- 
tifiable : thus out of its own mouth is the German staff 
condemned and its " buccaneering levies " upon the 
forlorn inhabitants of Belgimn held up to reprobation. 

Still more significant are the remarks on the right and 
duty of neutrals. The inviolability of neutral territory 
and the sanctity of the Geneva Convention are the only 
two principles of international law which the German 
War-Book admits to be laws of perfect obligation. A 
neutral State, it declares, not only may, but must forbid 
the passage of troops to the subjects of both belligerents. 
If either attempts it. the neutral State has the right to 
resist "with all the means in its power." However 


overwhelming the necessity, no belligerent must suc- 
cumb to the temptation to trespass upon the neutral 
territory. If this be true of a neutral State it is doubly 
true of a neutralized State. No one has been so empha- 
tic on this point as the German j mists whose words the 
War-Book is so fond of prajdng in aid. The Treaty of 
London guaranteeing the neutrality of Belgiimi is 
declared by them to be "a landmark of progress in the 
formation of a European polity " and " up till now no. 
Power has dared to violate a guarantee of this kind."^ 

** He who injures a right does injury to the cause of 
right itself, and in these guarantees lies the express 
obligation to prevent such things. . . . Nothing could 
make the situation of Europe more insecure than an 
egotistical repudiation by the great States of these duties 
of international fellowship.'** 

The reader will, perhaps, hardly need to be cau- 
tioned against the belligerent footnotes with which the 
General Staff has illuminated the text. They are, as 
he will observe, mainly directed towards illustrating 
the peculiar depravity of the Fiench in 1870. They 
aie certainly suspect, and all the more so, because the 
notorious malpractices of the Germans in that campaign 
are dismissed, where they are noticed at ail, with the 
airy remark that there were peculiar circumstances, or 
that they were imauthorized, or th«t the "necessity of 
war " afforded sufficient justification. All this is ex 
parte. So too, to a large extent, is the parade of 
Professors in the footnotes. They are almost always 
German professors and, as we shall see later, the Ger- 
man professor is, and is compelled to be, a docile instru- 
ment of the State. 

The book has, of course, a permanent value apart 

^ HoltzendorfF, III, pp. 93, 108, 109. 

^ Ibid. The whole subject (of the neutrality of Belgium) is exam- 
ined by the present writer in Watt its Conduct and its Legal Results 
(John Murray). 


from the light it throws upon contemporary issues. 
Some of the chapters, such as that on the right and 
duties of neutrals, represent a carefully considered 
theory, little tainted by the cynicism which disfigures 
the rest of the book. It should be of great interest 
and value to those of us who are engaged in studying 
the problem of bringing economic pressure to bear 
upon Germany, by enclosing her in the meshes of con- 
ditional contraband. So, too, the chapter on the treat- 
ment of Prisoners of War will have a special, and for 
some a poignant, interest just now. The chapter on 
the treatment of occupied territory is, of course, of 
profound significance in view of the present state of 



Bismarck, wrote Hohenlohe, who ultimately succeeded 
him as Imperial Chancellor, " handles everything with 
a certain arrogance {UebermtU), and this gives him a 
considerable advantage in dealing with the timid 
minds of the older European diplomacy." This native 
anogance became accentuated after the triumphs of 
1870 until, in Hohenlohe's words, Bismarck became 
" the terror " of all European diplomatists. That word 
is the clue to German diplomacy. The terrorism which 
the Germans practise in war they indoctrinate in peace. 
It was a favourite saying of Clausewitz, whose military 
writings enjoy an almost apostolic authority in Ger- 
many, that War and Peace are but a continuation of one 
another — " War is nothing but a continuation of politi- 
cal intercourse with a mixture of other means. "^ The 
same lesson is written large on every page of von der 
Goltz* and Bemhardi*. In other words, war projects 

1 Vom Kriege, VIII, Kap. 6 (b). 

■ The Nation in Arms, sec. 3 : " Policy creates the total situation 
in which the State engages in the struggle " ; and again, " it is clear 
that the political action and military action ought always to be 
closely united." 

• Germany and the Next War : " The appropriate and conscious 
employment of war as a political means has always led to happy 
results." And again, '* The relations between two States must often 
be termed a latent war which is provisionally being waged in peaceful 
rivalry. Such a position j ustifies the employment of hostile methods, 
just as war itself does, since in such a case both parties are determincNi 
to employ them." 


its dark shadow over the whole of German diplomacy. 
The dominant postures in " shining armour " at critical 
moments in the peace of Europe, and the menacing 
invocations of the *' mailed fist " are not, as is conmionly 
supposed, a passionate idios5nicrasy of the present 
Emperor. They are a legacy of the Bismarckian tradi- 
tion. To keep Europe in a perpetual state of nervous 
apprehension by sombre hints of war was, as we shall 
see, the favourite method by which Bismarck attained 
his diplomatic ends. For the German Chancellerie 
rumours of wars are of only less political efficacy than 
wars themselves. After 1870, metaphors of war 
became part of the normal vocabulary of the German 
Government in times of peace. Not only so but, as 
will be seen in the two succeeding chapters, a belligerent 
emotion suffused the temperament of the whole German 
people, and alike in the State Universities, and the 
stipendiary Press, there was developed a cult of War 
for its own sake. The very vocabulary of the Kaiser's 
speeches has been coined in the lecture-rooms of 
Berlin University. 

Now War is at best but a negative conception and its 
adoption as the Credo of German thinkers since 1870 
explains why their contributions to Political Science 
have been so sterile. Moie than that, it accounts for 
the decline in public morality. Politically, Germany, 
as we shall see, has remained absolutely stagnant. 
She is now no nearer self-government than she was in 
1870 ; she is much farther removed from it than she 
was in 1848. The inevitable result has been, that 
politics have for her come to mean little more than in- 
trigues in high places, the deadly struggle of one con- 
tending faction at court against another, with the peace 
of Europe as pawns in the game. The German Empire, 
like the Prussian kingdom, has little more than a paper 
constitution, a lex imperfecta as Gneist called it. The 


Reichstag has little power and less prestige, and its 
authority as a representative assembly has been so 
enervated by the shock tactics practised by the Govern- 
ment in forcing, or threatening^ to force, a series of dis- 
solutions to punish contumacious behaviour, that it is 
little better than a debating society. A vote of censure on 
the Government has absolutely no effect Of the two 
poweiS, the Army and the Reichstag, the Army is 
infinitely the stronger; there is jio law such as our 
Army Annual Act which subjects it to Parliamentary 
control. Even the Bundesrath* (or Federal Council), 
strong as it is, is hardly stronger than the German 
General Staff, for the real force which welds the German 
Empire together is not so much this council of pleni- 
potentiaries from the States as the military hegemony 
of Prussia and the military conventions between her 
and the Southern States by which the latter placed 
their armies under her supreme control. In this shirt 
of steel the body politic is enclosed as in a vice. 

Nothing illustrates the political lifelessness of Ger- 
many, the arrogance of its rulers and the docility of its 
people (for whom, as will be seen, the former have fre- 
quently expressed the utmost contempt) more than the 
tortuous course of German diplomacy during the years 
1870-1900. I shall attempt to sketch very briefly 
the political history of those years, particularly in the 
light of the policy of calculated Terrorism by which 
the German Chancellerie sought to impose its yoke upon 
Europe. Well did Lord Odo Russell say that " Bis- 
marck's sajdngs inspired respect " (he might, had he 

^ The Bundesrath is a Second Chamber, a Cabinet or Executive 
Council, and a Federal Congress of State Governments all in one. 
Indeed, its resemblance to a Second Chamber is superficial. It can 
dissolve the Reichstag when it pleases. See Laband, Die Entwicke-' 
lung des Bundesraths, Jahrbuch des Oeffentlichen Rechts, 1907, Vol. I, 
p. 18, and also his Deutsches Staatsrecht, Vol. I, passim. 


not been speaking as an ambassador, have used, like 
Hohenlohe, a stronger word) "and his silences appre- 
hension."* If it be true, as von der Goltz says it is, 
that national strategy is the expression of national 
character and that the German method is, to use his 
words, "a brutal offensive," nothing could bring out 
that amiable characteristic more clearly than the study 
of Bismarck's diplomacy. The German is brutal in war 
just because he is insolent in peace. Count Herbert 
"can be very insolent," wrote the servile Busch of Bis- 
marck's son, " which in diplomacy is very useful."* 

Bismarck's attitude towards treaty obligations is one 
of the chief clues to the history of the years 1870-1900. 
International policy, he once wrote, is " a fluid element 
which under certain conditions will solidify, but on a 

* I have based the remarks which follow on a close study of German, 
French, and English authorities — ^among others upon the following : 
Bismarck, Gedanken und Erinnerungen; Hohenlohe, Denkwufdigket" 
ten : Hanotaux, Histoire de la France Contemporaine ; de Broglie, 
Mission de M. de Gontaut-Biron ; Fitzmaurice, The Life of Lord 
Granville. All these are the works of statesmen wh o could legitimately 
say of their times quorum pars magna fui. Lord Fitzmaurice's book, 
apart from its being the work of a statesman, whose knowledge of 
foreign affairs is equalled by few and surpassed by none, is indis- 
pensable to a study of Anglo-German relations since 1850. being 
based on diplomatic sources, in particular the despatches of Lord 
Ode Russell. Some passages in The Life of Lord Lytton are also 
illuminating, likewise the essays of that prince of French historians, 
Albert Sorel. But I have, of course, also gone to the text of treaties 
and original documents. 

9 The study which follows is based on cosmopolitan materials : 
The reader must exercise great caution in using political memories 
such as those of Bismarck. In autobiography, of all forms of history, 
as Goethe observes in the preface to Wahrheit und Dichtung, it is 
supremely difficult for the writer to escape self-deception ; he is so 
apt to read himself backwards and to mistake society's influence upon 
him for his influence upon society. In the case of Bismarck in 
particular, his autobiography often took the form of apologetics, 
and he invests his actions wilh a foresight which they did not always 
possess, while, on the other hand, he is so anxious to depreciate his 
rivals (particularly Gortchakoff) that he often robs himself of the 
prestige of victory. Hohenlohe is, in this respect, a far safer guide. 
He was not as great a man as Bismarck, but he was an infinitely more 
honest one. 


change ol atmosphere reverts to its original condition."^ 
The process of solidification is represented by the making 
of treaties ; that of melting is a euphemism for the 
breaking of them. To reinsure German's future by 
taking out policies in different countries in the form of 
secret treaties of alliance while concealing the existence 
of other and conflicting treaties seemed to him not only 
astute but admirable. Thus having persuaded Austria- 
Hungary to enter into a Triple Alliance with Germany 
and Italy by holding out as the inducement the promise 
of protection against Russia, Bismarck by his own 
subsequent confession concluded a secret treaty with 
Russia against Austria. To play of! each of these coun- 
tries against the other by independent professions of 
exclusive loyalty to both was the Leit-motif of his diplo- 
macy. Nor did he treat the collective guarantees of 
European treaties with any greater respect. Good 
faith was a negotiable security. Hence his skilful 
exploitation of the Black Sea clauses of the Treaty of 
Paris (1856) when he wished to secure the friendly 
neutrality of Russia during the Franco-Prussian War. 
Russia, it will be remembered, suddenly and to every- 
one's surprise, denounced those clauses. The European 
Powers, on the initiative of England, disputed Russia's 
claim to denounce motu proprio an international obli- 
gation of so solemn a character, and Bismarck responded 
to Lord Granville's initiative in words of ostentatious 
propriety : n 

** That the Russian Circular of the 19th October 
[denouncing the clauses in question] had taken him hy 
surprise. That while he had always held that the 
Treaty of 1856 pressed with undue severity upon 
Russia, he entirely disapproved of the manner adopted 
and the time selected by the Russian Government to 
force the revision of the Treaty.*** 

* Gedanken und Erinnerungen, Bd. II, Kap. 29, p. 287. 

* Notes of Lord Odo Russdl, British Ambassador at Berlin, of a 


Nearly a generation later Bismarck confessed, and 
prided himself on the confession, in his Reminiscences,^ 
that he had himself instigated Russia to denomice the 
Black Sea clauses of the Treaty ; that he had not only 
instigated this repudiation but had initiated it as afford- 
ing " an opporttmity of improving our relations with 
Russia." Russia succumbed to the temptation, but, as 
Bismarck cheerfully admits, not without reluctance. 

This, however, is not all: Europe "saved her face" 
by putting on record in the Conference of London (1871) 
a Protocol, subscribed by the Plenipotentiaries of all the 
Powers, in which it was laid down as 

** an essential principle of the law of nations that no 
Power can repudiate treaty engagements or modify 
treaty provisions, except with the consent of the con- 
tracting parties by mutual agreement." 

This instrument has been called, not inaptly, the foun- 
dation of the pubUc law of Europe. It was in virtue of 
this principle that Russia was obliged to submit the 
Russo-Turkish Treaty of San Stefano, and with it the 
fruits of her victories in 1877-8, to the arbitrament of 
the Congress of Berlin. At that Congress Bismarck 
played his favourite r61e of "honest broker," and there 
is considerable ground for believing that he sold the 
same stock several times over to different clients and 
pocketed the " differences." What kind of conflicting 
assurances he gave to the different Powers will never 
be fully known, but there is good ground for believing 
that in securing the temporary occupation of Bosnia- 
Herzegovina he had in mind the ultimate Germaniza- 
tion of the Adriatic, and that domination of the Mediter- 
ranean at the expense of England which has long been 

conversatioQ with Bismarck, reported in a despatch of November 
32nd, 1870, to Lord Granville, and published in the Parliamentary 
P^ers of 1871 [Cd. 245]. 

^Gedanken und Erinnerungen, II, Kap. 23. 



the dream of German publicists from Treitschke onward.^ 
What, however, clearly emerged from the Congress, 
and was embodied in Article XXV of the Berlin Treaty, 
was, that Austria was to occupy and administer 
Bosnia-Herzegovina under a European mandate. She 
acquired lordship without ownership ; in other words, 
the territory became a Protectorate. Her title, as it 
originated in, so it was limited by, the Treaty of Berlin. 
Exactly thirty years later, in the autumn of 1908, 
Austria, acting in concert with Germany, abused her 
fiduciary position and without any mandate from the 
Powers annexed the territory of which she had been 
made the guardian. This arbitrary action was a viola- 
tion of the principle to which she and Germany had 
subscribed at the London Conference, and Sir Edward 
Grey attempted, as Lord Granville had done before 
him, to preserve the credit of the public law of Europe 
by a conference which should consider the compensation 
due to Servia for an act which so gravely compromised 
her security. Russia, France, and Italy joined vnih 
Great Britain in this heroic, if belated, attempt to save 
the international situation. It was at this moment 
(March, 1909) that Germany appeared on the sc^ne 
" in shining armour," despatched a vefled ultimatum to 
Russia, with a coveit threat to mobilize, and forced 
her to abandon her advocacy of the claims of Servia 
and, with them, of the public law of Europe. 

Thus did History repeat itself. Germany stood f ortl^ 
once again as the chartered libertine of Europe whom 
no faith could bind and no duty oblige. May it not be 
said of her what Machiavelli said of Alexander Borgia : 
" E non fu mai uomo che avesse maggiore]^ef&cacia in 

^ See the remarkable articles, based on unpublished documents 
by M. Hanotaux,in the Revue des deux Mondes, Sept. 15th and Oct. 
ist, 1908, on •• Le Congr^ de BerUn." 


asseveraie, e che con maggiori giuramenti affennasse 
una cosa, e che Tosservasse meno."^ 

It would carry me far beyond the limits of this Intro- 
duction to trace in like detail the German policy of 
Scharfmacherei which consisted, to use the mordant 
phrase of M. Hanotaux, in putting up to auction that 
which is not yours to sell and, not infrequently, knock- 
ing it down to more than one bidder. That Bismarck 
encouraged Russian ambitions in Asia and French am- 
bitions in Africa with the view of making mischief 
between each of them and England is notoiious. In 
his earlier attitude he was content to play the role of 
tertius gaudens ; in his later he was an active agent 
provocateur — ^particularly during the years 1883-1885, 
when he joined in the scramble for Africa. The earlier 
attitude is well indicated in Hohenlohe's revelations, 
that Bismarck regarded French colonial operations as a 
timely diversion from the Rhine, and would not be at all 
sorry " to see the English and French locomotives come 
into collision," and a French annexation of Morocco 
would have had his benevolent approval. After 1883 
his attitude was less passive but not less mischievous. 
Ten years earlier he had told Lord Odo Russell that 
colonies " would only be a cause of weakness " to Ger- 
many. But by 1883 he had been slowly and reluctantly 
converted to the militant policy of the Colonial party 
and the cry of Welt politik was as good as a war-scare 
for electioneering purposes. It was in these days that 
hatred of England, a hatred conceived in jealousy of her 
world-Empire, was brought f orth,* and the obstetrics of 
Treitschke materially assisted its birth. Bismarck, 

1 " No man ever had a more efiective manner of asseverating, or 
made promises with more solemn protestations, or observed them 
less," // Principe, Cap. i8. 

^Cf. Lord Ampthill's despatch (Aug. 25th, 1884). " He has dis- 


however, as readers of his Reminiscences are well aware, 
had an intellectual dislike of England based on her 
forms of government. He loved the darker ways of 
diplomacy and he thought our* Cabinet system fatal 
to them. He had an intense dislike of Parliamentarism, 
he despised alliances " for which the Crown is not an- 
swerable but only the fleeting cabinet of the day," and 
above all he hated plain dealing and publicity. "It is 
astonishing," wrote Lord Ampthill, "how cordially 
Bismarck hates our Blue Books." 

The story of Bismarck's diplomatic relations with 
England during these years exhibits the same features 
of duplicity tempered by violence as marked his rela- 
tions with the rest of Europe. He acquired Samoa by 
a deliberate breach of faitli, and his pretence of negotia- 
tions with this country to delimit the frontiers of Eng- 
lish and German acquisitions while he stole a march 
upon us were properly stigmatized by the Colonial 
Office as " shabby behaviour." Whether he really 
egged on France to " take Tunis " in order to embroil 
her with England will perhaps never be really known,* 
but it was widely suspected in France that his motives 
in supporting, if not instigating,* the colonial policy of 
Jules Ferry would not bear a very close examination. 
That he regarded it as a timely diversion from the Rhine 
is certain ; that he encouraged it as a promising embar- 
rassment to England is probable. There can be no 

covered an unexplored mine of popularity in starting a colonial policy 
which public opinion persuades itself to be anti-English, and the 
slumbering theoretical envy of the Germans at our wealth and our 
freedom has taken the form of abuse of everything English in the 
Press.*' — ^Fitzmaurice's Granville, II, 358. 

* For a careful examination of the story see Fitzmaurice, II, 234 
and 429. 

■ There is a spirited, but not altogether convincing, vindication of 
Ferry in Rambaud's Jules Ferry, p. 395. It is not Ferry's honesty 
that is in question, but his perspicacity. 


doubt that much the same construction is to be put on 
his attitude towards Russia's aspirations in Asia ; that 
they should divert Russia from Europe was necessary ; 
that they might entangle her with England was desir- 

Fear of Russia has, in fact, always been an obses- 
sion of the German Government. That fear is the 
just Nemesis of Frederick the Great's responsibility 
for the infamous Partition of Poland. The reader 
who wants to imderstand the causes of this, cannot do 
better than study an old map of the kingdom of Poland, 
and compare it with a map of Poland after the first and 
second Partitions. The effect of those cjmical transac- 
tions was to extinguish an ancient "buffer state," 
separating Prussia, Austria, and Russia, and by exting- 
uishing it to bring them into menacing contiguity with 
each other. Never has any crime so haunted its per- 
petrators. Poland has been the permanent distraction 
of the three nations who dismembered her, each per- 
petually suspicious of the other two, and this fact is the 
main due to the history of Eastern Europe.* The 
fear of Russia, and of a Russo-French or a Russo- 
Austrian alliance, is the dominant feature of Bismarck's 
diplomacy. He was, indeed, the evil genius of Russia 
for, by his own confession,* he intrigued to prevent her 
from pursuing a liberal policy towards Poland, for 
fear that she would thereby be drawn into friendship 
with France. To induce her to break faith with Russia, 
her Polish subjects in one case, and with Europe in 

^ Its profound reactions have been worked out by the hand of a 
master in Sorel's L' Europe et la Revolution francaise, and, in particu- 
lar, in his La Question d* Orient, which is a searching analysis of these 
tortuous intrigues. 

' Cf . Bismarck's Erinnerungen (the chapter on the Alvensleben 
Convention) : "It was our interest to oppose the party in the 
Russian Cabinet which had Polish proclivities . . . because a Polish- 
Russian policy was calculated to vitalize that Russo-French sym- 
pathy against which Prussia's efiort had been directed since the 
Peace of Paris." 


another — ^the former by suppressing the Polish consti- 
tutional movement ; the latter by repudiating the 
Black Sea clauses — ^was to isolate her from Europe. 
German writers to-day affect to speak of " Muscovite 
barbarism" and "Oriental despotism," but it hasbeen the 
deliberate policy of Germany to cut Russia off from the 
main stream of European civilization — ^to timi her face 
Eastwards, thereby Bismarck hoped, to quote his own 
words, to " weaken her pressure on our Eastern frontiers." 
But Bismarck's contempt for treaties and his love 
for setting other Powers by the ears were venial com- 
pared with his policy of Terrorism. His attitude to 
France from 1870 to the day of his retirement from 
office — and it has been mis-stated many times by his 
successors — ^was very much that which Newman 
ascribed to the Erastian view of the treatment of the 
church — " to keep her low " and in a perpetual state of 
terror-stricken servility. That this is no exaggeration 
will be apparent from what follows here about the war 
scares with which he terrified France, and with France 
Europe also, in the years 1873-5, the years, when, as our 
ambassador at Paris, Lord Lytton, has put it, he 
" played with her like a cat with a mouse. "^ Perhaps the 
most illuminating account of these tenebrous proceedings 
is to be derived from Hohenlohe, who accepted the offer 
of the German Embassy at Paris in May, 1874. The 
post was no easy one. There had already been a " scare " 
in the previous December, when Bismarck menaced 
the Due de Broglie with war, using the attitude of the 
French Bishops as a pretext ; ■ and, although Hohen- 

^Lije of Lord Lytton, II, pp. 260 seq. On the whole story see 
Hohenlohe passim ; also Hanotaux, Vol. Ill, ch. iv ; de Broglie's 
Gontaut-Biron and Fitzmauiice's Granville. The cheerfully male- 
volent Busch is also sometimes illuminating. 

A It was on this occasion that, according to Hanotaux, quoting 
from a private document of the Due Decazes, Lord Odo RusseU 
reported an interview with Bismarck, in which the latter said he 
wanted " to finish France ofi." 

WAR SCARE OF 1875 23 

lohe's appointment was at first regarded as an eirenicon, 
there followed a period of extreme tension, when, as the 
Due Decazes subsequently confessed, French Ministers 
were " living at the mercy of the smallest incident, the 
least mistake." 

The truth about the subsequent war scare of 1875 is 
still a matter of speculation, but the documents pub- 
lished of late years by de Broglie and Hanotaux, and the 
despatches of Lord Odo Russell, have thrown consider- 
able suspicion of a very positive kind on Bismarck's plea 
that it was all a malicious invention of Gontaut-Biron, 
the French Ambassador, and of GortchakofE. A care- 
ful collation of the passages in Hohenlohe's Memoirs 
goes far to confirm these suspicions, and, incidentally, 
to reveal Bismarck's inner diplomacy in a very sinister 
light. Hohenlohe was appointed to succeed the unhappy 
Amim, who had made himself obnoxious to Bismarck 
by his independence, and he was instructed by the 
Chancellor, that it was to the interest of Germany to 
see that France should become " a weak Republic and 
anarchical," so as to be a negligible quantity in Euro- 
pean politics, on which the Emperor William I re- 
marked to Hohenlohe that " that was not a policy," 
and was not " decent," subsequently confiding to 
Hohenlohe that Bismarck was trying " to drive him 
more and more into war"; whereupon Hohenlohe 
confidently remarked : "I know nothing of it, and I 
should be the first to hear of it." Hohenlohe soon 
found reason to change his opinion. As GortchakofE 
remarked to Decazes, " they have a difficult way with 
diplomatists at Berlin," and Hohenlohe was instructed 
to press the French Ministry for the recall of Gontaut- 
Biron, against whom Bismarck complained on account 
of his Legitimist opinions and his friendship with the 
Empress Augusta. Thereupon, that supple and elusive 
diplomat, the Duo Decazes, jparried by inviting an 


explanation of the menacing words which Gontaut- 
Biron declared had been uttered to him by Radowitz, 
a Councillor of Legation in Berlin, to the effect that 
" it would be both politic and Christian to declare war 
at once," the Duke adding shrewdly : " One doesn't 
invent these things." Hohenlohe in his perplexity 
tried to get at the truth from Bismarck, and met with 
what seems to us a most disingenuous explanation. 
Bismarck said Radowitz denied the whole thing, but 
added that, even if he had said it, Gontaut-Biron had 
no right to report it. He admitted, however, that 
Radowitz made mischief and " egged on " Biilow, the 
Foreign Secretary. " You may be sure," he added, 
"that these two between them would land us in a war 
in four weeks if I didn't act as safety-valve." Hohen- 
lohe took advantage of this confession to press for 
the dispatch of Radowitz to some distant Embassy 
" to cool himself." To this Bismarck assented, but a 
few days later declared that Radowitz was indispens- 
able. When Hohenlohe attempted to sound Bismarck on 
the subject the Chancellor showed the utmost reserve. 
After the war scare had passed, Decazes related to 
Hohenlohe an earlier example of Imperial truculence 
on the part of Amim, who, on leaving after a call, 
turned round as he reached the door and called out : 
" I have forgotten one thing. Recollect that I forbid 
you to get possession of Timis"; and when Decazes 
affected to regard the matter as a jest, Amim repeated 
with emphasis : '* Yes, I forbid it." Hohenlohe adds 
that an examination of his predecessor's papers con- 

• vinced him that Arnim did not speak without express 
authorization. When the elections for the French 
Chamber are imminent in the autmnn of 1877, Bismarck 
informs Hohenlohe that Germany will adopt " a threat- 
ening attitude," but " the scene will be laid in Berlin, 

' not in Paris." The usual Press campaign followed. 


much to the vexation of the Emperor, who complained 
to Hohenlohe that the result of these " pin-pricks " 
(Naddstiche) would provoke the French people beyond 

In studying this calculated truculence we have to 
remember that in Germany foreign and domestic policy 
are inextricably interwoven. A war scare is with the 
German Government a favourite method of bringing the 
Reichstag to a docile frame of mind and diverting it 
from inconvenient criticism of the Government's pdicy 
at home. Moreover, just as war is, in von der Goltz's 
words, a reflection of national character, so is diplomacy. 
A nation's character is revealed in its diplomacy just 
as a man's breeding is revealed in his conversation.^ 
We must therefore take into account the polity of 
Gamany and its political standards. 

The picture of the Prussian autocracy in the later 
days of Bismarck's rule which we can reconstruct from 
different entries in Hohenlohe's Journal from the year 
1885 onwards is a very sombre one. It is a pictuie of 
suspicion, treachery, vacillation, and calumny in high 
places which remind one of nothing so much as the 
Court of the later Bourbons. It is a regime of violence 
abroad and dissensions at home. Bismarck's health 
was failing him, and with his health his temper. He 
comjdained to Hohenlohe that his head " grew hot " the 
moment he worked, and the latter hardly dared to dis- 
pute with him on the gravest matters of State. Read- 
ers of Busch will remember his frank disclosures of the 
anarchy of the Foreign Office when Bismarck was away : 
" if the Chief gives violent instructions, they are carried 
out with still greater violence." In Hohenlohe we 
begin to see all the grave implications of this. Bis- 
marck, with what Lord Odo Russell called his passion I 

^ Cf . Albert Sorel : ** La diplomatic est I'expression des moeurs 
poUtiques " ; and cf. his remarkable essay, " La Diplomatie et le 
progrls," in Essais d'histoire ei de critique, \ 



for authority, was fond of sneering at English foreign 
policy as liable to be blown about with every wind of 
political doctrine ; but if Parliamentary control has 
its defects, autocracy has defects more insidious still. 
WiQ becomes caprice, and foreign relations are at the 
mercy of bureaucrats who have no sense of responsibility 
so long as they can adroitly flatter their master. When 
a bureaucrat trained under this system arrives at power, 
the result may be nothing less than disastrous. This 
was what happened when Bismarck's instrument, 
Holstein, concentrated power into his own hands at the 
Foreign Office; and as the Ueue Freie Presse^ pointed 
out in its disclosures on his fall (1906), the results are 
writ large in the narrowly averted catastrophe of a war 
with France in 1905. Bismarck's disciples had all his 
calculated violence without its timeliness. In the 
Foreign Office, Hohenlohe discovered a kind of anar- 
chical " republicanism " — " nobody," in Bismarck's 
frequent absence " will own responsibility to any one 
else." " Bismarck is nervously excitable," writes 
Hohenlohe in March, 1885, " and harasses his subordi- 
nates and frightens them, so that they see more behind 
his expression than there really is." like most small 
men, in terror themselves, they terrorized others. More- 
over, the disinclination of the Prussian mind, which 
Bismarck himself once noted, to accept any respon- 
sibility which is not covered by instructions, tended to 
reduce the German Ambassadors abroad to the level 
of mere aides-de-camp. Hohenlohe found himself 
involved in the same embarrassments at Paris as Count 
Miinster did in London. Any one who has studied the 
inner history of German foreign policy must have di- 
vined a secret diplomacy as devious of its kind as that 

^ June 3rd, 1906, in a remarkable article entitled ** Holstein," 
which is a close study of the inner organization of the German 
Foreign 03a.ce and its traditions. 


of Louis XV. Of its exact bearings little is known, but 
a great deal may reasonably be suspected. There is 
always the triple diplomacy of the Court, the Imperial 
Chancery, and lastly the Diplomatic Service, which is 
not necessarily in the confidence of either. 

The same debilitating influences of a dictatorship 
were at work in Ministerial and Parliamentary life. 
Bismarck had an equal contempt for the collective 
responsibility of Ministers and for Parliamentary control. 
Having done his best to deprive the Members of the 
Reichstag of power, he was annoyed at their irrespon- 
sibility. He called men like Bennigsen and Windhorst 
silly schoolboy politicians (Karlchen-Miesnick-Tertianen) 
or " Ijring scoundrels " (verlogene Halunken). He was 
surprised that representation without control resulted 
in faction. It is the Nemesis of his own political doc- 
trines. When he met with opposition he clamoured for 
repressive measures, and could not understand some 
of the scruples of the Liberals as to the exceptional 
laws against the Socialists. Moreover, having tried, 
like another Richelieu, to reduce his fellow-Ministers 
to the position of clerks, he was annoyed at their want 
of corporate spirit, and when they refused to follow 
him into his retirement, he declaimed against their 
apostasy in having " left him in the lurch." He talked 
at one time of abolishing the Reichstag ; at another of 
having a special post created for himself as " General- 
Adjutant." He complained of overwork — and his 
energy was Titanic — ^but he insisted on keeping his eye 
on everything, conscientiously enough, because, he tdls 
Hohenlohe, " he could not put his name to things which 
did not reflect his own mind." But perhaps the gravest 
moral of it all is th« Nemesis of deception. It is dif&cult 
to be both loved and feared, said Machiavelli. There 
is a sombre irony in the remark of the Czar to the Em- 
peror in 1892, which the latter repeated to Hohenlohe. 


Bismarck had been compeUed to retire because he had 
failed to induce the Emperor to violate Germany's 
contractual obligations to Austria by renewing his secret 
agreement with Russia, and he consoled himself in his 
retirement with the somewhat unctuous reflection that 
he was a martyr to the cause of Russo-German friend- 
ship, betrayed, according to him, by Capri vi. " Do 
you know," said the young Emperor (in August, 1892), 
" the Czar has told me he has every trust in Caprivi ; 
whereas when Bismarck has said anything to him he 
has always had the conviction that '* he is tricking me ?" 
We are reminded of the occasion when Talleyrand told 
the truth so frankly that his interlocutor persisted in 
regarding it as an elaborate form of deception. After 
all, there are advantages, even, in diplomacy, in being 
what Schuvaloff called Caprivi, a " too honest man." 
It was the same with the domestic atmosphere. Bis- 
marck, an adept at deceiving, is always complaining of 
deception ; a master of intrigue, he is always declaim- 
ing against the intrigues of others. He inveighs against 
the Empress Augusta : " for fifty years she has been 
my opponent with the Emperor." He lived in an 
atmosphere of distrust, he was often insolent, and 
always suspicious. It affected all his diplomatic inter- 
course, and was not at all to Hohenlohe's taste. " He 
handles everjrthingwitha certain axrogance {Uebermul)," 
once wrote Hohenlohe (as we have already said) of a 
discussion with him over foreign affairs. " This has 
always been his way." 

All these tendencies came to a head when the sceptre 
passed from the infirm hands of William I to those of a 
dying King, around whose death-bed the military party 
and the Chancellor's party began to intrigue for influ- 
ence over the young Prince whose advent to empire 
was hourly expected. Of these intrigues Hohenlohe, 
who was now Statthalter of Alsace-Lorraine, soon began 


to fed the effects without at first discovering the cause. 
He loved the people of the Reichsland, was a friend of 
France, and an advocate of liberal institutions, and in 
this spirit he strove to administer the incorporated 
territories. But the military party worked against 
him, hoping to secure the abolition of the moderate 
measure of local government and Reichstag representa- 
tion which the Provinces possessed; and when the 
latter returned a hostile majority to the Reichstag they 
redoubled their efforts for a policy of "Thorough." 
Bismarck gave but a lukewarm support to Hohenlohe 
and insisted on the enforcement of drastic passport 
r^ulations, which, combined with the Schnaebele 
affair (on which the Memoirs are very reticent), almost 
provoked France to War — ^naturally enough, in the 
opinion of Hohenlohe, and inevitably, according to the 
forebodings of the German Military Attach^ at Paris. 
To Hohenlohe's imploring representations Bismarck 
replied with grim jests about Alva's rule in the Nether- 
lands, adding that it is all done to show the French " that 
their noise doesn't alarm us." Meanwhile Switzerland 
was alienated, France injured, and Austria suspicious. 
But Hohenlohe, after inquiries in Berlin and Baden, 
began to discover the reason. Bismarck feared the 
influence of the military party over the martial spirit 
of Prince William, and was determined to show himsef 
equally militant in order to secure his djmasty. " His 
sole object is to get his son Herbert into the saddle," 
said Bleichroder ; so there is no hope of an improve- 
ment in Alsace-Lorraine," — although Prince Herbert 
alienated everybody by his insolence, which was so 
gross that the Prince of Wales (King Edward), at 
this time in Berlin, declared that he could scarcely 
restrain himself from showing him the door. The 
leader of the military party, Waldersee, was hardly 
more public-spirited. He had, according to Bis- 


marck, been made Chief of Staff by Moltke, over 
the heads of more competent men, because he was 
more docile than they. Between these military and 
civil autocracies the struggle for the possession of the 
present Emperor raged remorselessly, and with appalling 
levity they made the peace of two great nations the 
pawns in the game. The young Emperor is seen in 
Hohenlohe's Memoirs feeling his way, groping in the 
dark ; but those who, like the Grand Duke of Baden, 
knew the strength of his character foresaw the end. 
At first, he " doesn't trust himself to hold a different 
opinion from Bismarck" ; but, " as soon as he perceives 
that Bismarck doesn't tell him everything," predicted 
the Grand Duke, " there will be trouble." Meanwhile 
Waldersee was working for war, for no better reason 
than that he was getting old, and spoiling for a fight 
before it was too late for him to take the field. 

For Bismarck's dismissal there were various causes : 
differences in domestic policy and in foreign, and an 
absolute impasse on the question whether Bismarck's 
fellow-Ministers were to be treated as colleagues or 
subordinates. " Bismarck," said Caprivi afterwards, 
" had made a treaty with Russia by which we guaranteed 
her a free hand in Bulgaria and Constantinople, and 
Russia bound herself to remain neutral in a war with 
France. That would have meant the shattering of the 
Triple Alliance." Moreover, the relations of Emperor 
and Chancellor were, at the last, disfigured by violent 
scenes, during which the Kaiser, according to the testi- 
mony of everyone, showed the most astonishing dignity 
and restraint. But it may all be summed up in the 
words of the Grand Duke of Baden, re-echoed by the 
Emperor to Hohenlohe, it had to be a choice between 
the dynasties of HohenzoUem and Bismarck. The 
end came to such a period of fear, agony, irony, despair, 
recrimination, and catastrophic laughter as only the 


pen of a Tacitus could adequatdy describe. Bismarck's 
last years, both of power and retirement, were those of 
a lost soul. Having tried to intrigue with foreign 
Ambassadors against his Sovereign before his retire- 
ment, he tried to mobilize the Press against him after 
he had retired, and even stooped to join hands with his 
old rival, Waldersee, for the overthrow of his successor, 
Capri vi, being quite indifferent, complained the Kaiser 
bitterly, to what might happen afterwards. "It is 
sad to think," said the Emperor of Austria toHohenlohe, 
" that such a man can sink so low." 

When Bismarck was dismissed every one raised his 
head. It seemed to Hohenlohe to be at last a case of the 
beatitude : " the meek shall inherit the earth." Hol- 
stein, the Under-Secretary, who, to the disgust of Bis- 
marck, refused to follow his chief and who now quietly 
made himself the residuary legatee of the whole political 
inheritance of the Foreign Ofl&ce, intended by Bismarck 
for his son, freely criticized his ex-chief's policy in a con- 
versation with Hohenlohe : 

** He adduced as errors of Bismarck's policy: The 
Berlin Congress, the mediation in China in favour of 
France, the prevention of the conflict between England 
and Russia in Afghanistan, and the whole of his 
tracasseries with Russia. As to his recent plan of leaving 
Austria in the lurch, he says we should then have made 
ourselves so contemptible that we should have become 
isolated and dependent on Russia." 

Bismarck, whom Hohenlohe visited in his retirement, 
with a strange want of patriotism and of perspicuity, 
pursued " his favourite theme " and inveighed against 
the envy {der Neid) of the German people and their 
incurable particularism. He never divined how much 
his jealous autocracy had fostered these tendencies. 
One may hazard the opinion that the Germans are no 
more wanting in pubUc spirit and political capacity 


than any other nation ; but if they are deprived of the 
rights of private judgment and the exercise of political 
ability, they are no more likely to be immune from the 
corresponding disabilities. Certainly, in no country 
where public men are accustomed to the exercise of 
mutual tolerance and loyal co-operation by the practice 
of Cabinet government, and where public opinion has 
healthy play, would such an exhibition of disloyalty 
and slander as is here exhibited be tolerated, or even 
possible. When in 1895 Caprivi succumbed to the 
intrigues of the military caste and the Agrarian Party, 
Hohenlohe, now in his seventy-sixth year, was en- 
treated to come to the rescue, his accession being 
♦ regarded as the only security for German unity. To 
his eternal credit, Hohenlohe accepted ; but, if we may 
read between the lines of the scanty extracts here 
vouchsafed from the record of a Ministerial activity of 
six years, we may conjecture that it was mostly labour 
and sorrow. He was opposed to agrarianism and 
repressive measures, and anxious "to get on with the 
Reichstag," seeing in the forms of public discussion the 
only security for the public peace. But " the Prussian 
Junkers could not tolerate South German Liberalism," 
and the most powerful political caste in the world, with 
the Army and the King on their side, appear to have been 
too much for him. His retirement in 1900 marks the 
end of a fugitive attempt at something like a liberal 
policy in Germany, and during the fourteen years which 
have elapsed since that event autocracy has held undis- 
puted sway in Germany. The history of these latter 
years is fresh in the minds of most students of public 
affairs, and we will not attempt to pursue it here. 



Nothing is so characteristic of the German nation as its 
astonishing single-mindedness — ^using that term in a 
mental and not a moral sense. Since Prussia established 
her ascendancy the nation has developed an immense 
concentration of purpose. If the military men are not 
more belligerent than the diplomatists, the diplomatists 
are not more belligerent than the professors. A single 
purpose seems to animate them : it is to proclaim the 
spiritual efficacy, and the eternal necessity, of War. 

Already there are signs that the German professors 
are taking the field. Their mobilization is apparently 
not yet complete, but we may expect before long to see 
their whole force, from the oldest Professor Emeritus 
down to the youngest Privat-dozent, sharpening their 
pens against us. Professors Hamack, Haeckd, and 
Eucken have already made a reconnaissance in force, 
and in language which might have come straight from 
the armoury of Treitschke have denounced the mingled 
cupidity and hypocrisy with which we, so they say, have 
joined forces with Muscovite " barbarism " against 
Teutonic culture. This, we may feel sure, is only the 

German professors have a way of making history as 
well as writing it, and the Prussian Government has 
always attached the greatest importance to taking away 



its enemy's character before it despoils him of his goods. 
Long before the wars of 1866 and 1870 the seminars of 
the Prussian universities were as busy forging title-deeds 
to the smaller German states and to Alsace-Lorraine as 
any mediaeval scriptorium, and not less ingenious. In 
the Franco-Prussian War the professors — ^Treitschke 
Mommsen, Sybd — ^were the first to take the field and 
the last to quit it. Theirs it was to exploit the secular 
hatreds of the past. Even Ranke, the nearest approach 
to " a good European " of which German schools of 
history could boast, was implacable. When asked by 
Thiers on whom, the Third Empire having fallen, the 
Germans were continuing to make war, he replied, " On 
Louis XIV." 

Hardly were the results achieved before a casuistry 
was developed to justify them. Sybel's apologetics in 
"Die Begriindung des deutschen Reichs" began it; 
others have gone far beyond them. " Blessed be the 
hand that traced those lines," is Professor Delbriick's 
benediction on the forgery of the Ems telegram ; and 
in language which is almost a paraphrase of Bismarck's 
cynical declaration that a diplomatic pretext for a war 
can always be f oxmd when you want one, he has laid it 
down that "a good diplomat" should always have his 
quiver full of such barbed arrows. So, too, Sybd on 
Frederick's complicity in the Second Partition of an 
inoffensive Poland anticipates in almost so many words 
the recent sophistry of the Imperial Chancellor on the vio- 
lation of the neutrality of Belgium. "Wrong? I grant you 
— a violation of law in the most literal sense of the word. " 
But, he adds, necessity knows no law, and, " to sum it 
up," after all, Prussia "thereby gained a veiy consider- 
able territory." And thus Treitschke on the question 
of the duchies, or again, to go farther afield, Mommsen 
on the inexorable " faw " that the race is always to the 
swift and the battle to the strong. Frederick tiie Great 


sturdy knew his fellow-countrymen when he said with 
characteristic cynicism : " I begin by taking ; I can 
always find pedants to prove my rights afterwards." 
Not the Chancelleries only, but even the General Staff 
has worked hand in glove with the lecture-room. 
When Bemhardi and von der Goltz exalt the spiritual 
ef&cacy of war they are repeating almost word for word 
the language of Treitschke. Not a faculty but ministers 
to German statecraft in its turn. The economists, 
notably von Halle and Wagner, have been as busy and 
pragmatical as the historians — theirs is the doctrine 
of Prussian military hegemony upon a basis of agrarian- 
ism, of the absorption of Holland, and of " the future 
upon the water." The very vocabulary of the Kaiser's 
speeches has been coined in the lecture-rooms of Berlin 

To understand the potency of these academic influ- 
ences in German policy one must know something of the 
constitution of the German universities. In no country 
is the control of the Government over the universities so 
strong ; nowhere is it so vigilant. Political favour may 
make or mar an academic career ; the complaisant pro- 
fessor is decorated, the contumacious is cashiered. 
German academic history is full of examples. Treit- 
schke, Sybel, even Mommsen all felt the weight of royal 
displeasure at one period or another. The present 
Emperor vetoed the award of the Verdun prize to Sybel 
because in his history of Prussian policy he had exalted 
Bismarck at the expense of the Hohenzollems, and he 
threatened to dosfe the archives to Treitschke. Even 
Monmisen had at one time to learn the steepness of alien 

On the other hand, no Government recognizes so 
readily the value of a professor who is docile — he is of 
more value than many Pomeranian Grenadiers. Bis- 
marck invited Treitschke to accompany the army of 



Sadowa as a writer of military bulletins, and both he 
and Sybd were, after due caution, commissioned to 
write those apologetics of Prussian policy which are 
classics of their kind. Most German professors have 
at one time or another been publicists, and the Grenz- 
boten and the Preussische JahrUcher maintain the polem- 
ical traditions of Sybel's " Historische Zeitschrift." 
Moreover, the German university system, with the 
singular freedom in the choice of lectures and universi- 
ties, which it leaves to the student, tends to make a pro- 
fessor's classes depend for their success on his power of 
attracting a pubUc by trenchant oratory. Well has 
Acton said that the " garrison " of distinguished his- 
torians that prepared the Prussian supremacy, together 
with their own, " hold Berlin like a fortress." They 
still hold it and their science of fortification has not 

It is not necessary to recapitulate here the earlier 
phases of this politico-historical school whose motto 
found expression in Droysen's aphorism, *' The states- 
man is the historian in practice," and whose moral was 
" Die Weltgeschichte ist das Weltgericht," or, to put it 
less pretentiously, " Nothing succeeds like success." 
All of them, Niebuhr, Mommsen, Droysen, Hausser, 
Sybd, Treitschke, have this in common : that they are 
merciless to the rights of small nationalities. This was 
no accident ; it was due to the magnetism exercised 
upon then: minds by the hegemony of Prussia and by 
their opposition to the idea of a loose confederation of 
small States. They were almost equally united in a 
conmion detestation of France and could find no word 
too hard for her polity, her literature, her ideals, and her 
people. " Sodom " and " Babylon " were the best 
they could spare her. "Die Nation ist unser Fdbtid" 
wrote Treitschke in 1870, and " we must draw her teeth." 
Even Ranke dedared that everjrthing good in Germany 


had risen by way of opposition to French injBuences. 
The intellectual war was carried into every field and epoch 
of history, and all the institutions of modem civilization 
were traced by writers like Waitz and Maurer to the 
early German tribes uncorrupted by Roman influences. 
The same spirit was apparent in Sybd's hatred of the 
French Revolution and all its works. 

This is not the place to expound the intellectual 
revenge which French scholars like Fustel de Coulanges 
in the one sphere, and Albert Sorel in the other, after- 
wards took upon this insensate chauvinism of the chair. 
Sufficient to say that this cult of war and gospel of hate 
have narrowed the outlook of German thought ever 
since, as Renan warned Strauss they would, and have 
left Germany in an intellectual isolation from the rest 
of Europe only to be paralleled by her moral isolation 
of to-day. It was useless for Renan to remind German 
scholars that pride is the only vice which is punished in 
this world. " We Germans," retorted Mommsen, " are 
not modest and don't pretend to be." The words are 
almost the echo of that " thrasonic brag " with which 
Bismarck one day electrified the Reichstag. 

In the academic circles of to-day much of the hate 
formerly vented upon France is now diverted to Eng- 
land. In this, Treitschke set the fashion. Nothing 
delighted him more than to garnish his immensely 
popular lectures with uproarious jests at England — 
" the hypocrite who, with a Bible in one hand and an 
opium pipe in the other, scatters over the universe the 
benefits of civilization." But there was always method 
in his madness. Treitschke was one of the first to 
demand for Germany " a place in the sun " — ^this com- 
monplace of Imperial speeches was, I believe, coined by 
Sybd — and to press for the creation of a German Navy 
which should do what " Europe " had failed to do — 
set bounds to the crushing domination of the British 


JFleet and '* restore the Mediterranean to the Mediter- 
ranean peoples " by snatching back Malta, Corfu, and 
Gibraltar. The seed fell on fruitful soil. A young 
economist, the late Professor von Halle, whose vehement 
lectures I used to attend when a student at Berlin Uni- 
versity, worked out the maritime possibilities of German 
ambitions in " Volks-\md Seewirthschaft," and his 
method is highly significant in view of the recent ulti- 
matum delivered by Germany to Belgium. It was 
nothing less than the seduction of Holland by economic 
bribes into promising to Germany the abandonment of 
the neutrality of her ports in the event of war. Thereby, 
and thereby alone, he argued, Germany would be recon- 
ciled to the " monstrosity " (Unding) of the mouth of 
the Rhine being in non-German hands. In return Ger- 
many would take Holland and her colonies under her 
" protection." To the same effect writes Professor 
Karl Lamprecht in his " Zur jiingsten deutschen Ver- 
gangenheit," seizing upon the Boer war to demonstrate 
to Holland that England is the enemy. The same argu- 
ment was put forward by Professor Lexis. This was 
in the true line of academic tradition. Even the dis- 
creet and temperate Ranke once counselled Bismarck to 
annex Switzerland. 

Such, in briefest outline, is the story of the academic 
" garrison." Of the lesser lansquenets, the horde of 
privat-dozents and obscurer professors, whose intellec- 
tual folly is only equalled by their audacity, and who are 
the mainstay of the Pan-German movement, I have 
said nothing. It may be doubted whether the second 
generation can show anj^hing like the intellectual 
prestige which, with all their intemperance, distinguished 
their predecessors. But they have all laid to heart 
Treitschke's maxim, " Be governmental," honour the 
King, worship the State, and " believe that no salvation 
is possible except by the annihilation of the smaller 


States." It is a strange ending tothe Germany of Kant 
and Goethe. 

Nur der verdient sich Freiheit wie das Leben 
Der taglich sie erobern muss — 

The noble lines of Goethe have now a variant reading — 
'* He alone achieves freedom and existence who seeks 
to repeat his conquests at the expense of others " might 
be the motto of the Germans of to-day. But as they 
have appealed to History, so will History answer them. 



In a pamphlet of mordant irony addressed to " Mes- 
sietirs les Ministres du culte 6vang61ique de Tarmfe du 
roi de Prusse " in the dark days of 1870, Fustel de Coul- 
anges warned these evangelical camp-followers of the 
consequences to German civilization of their doctrines 
of a Holy War. " Your error is not a crime but it 
makes you commit one, for it leads you to preach war 
which is the greatest of all crimes." It was not impos- 
sible, he added, that that very war might be the begin- 
ning of the decadence of Germany, even as it would 
inaugurate the revival of France. History has proved 
him a true prophet, but it has required more than a 
generation to show with what subtlety the moral 
poison of such teaching has penetrated into German life 
and character. The great apostle of that teaching was 
Treitschke who, though not indeed a theologian, was 
characteristically fond of praying in aid the vocabulary 
of theology. " Every intedligent theologian understands 
perfectly well," he wrote, "that the Biblical saying 
' Thou shalt not kill ' ought no more to be interpreted 
literally than the apostolic injunction to give one's 
goods to the poor." He called in the Old Testament to 
redress the balance of the New. " The doctrines of the 
apple of discord and of original sin are the great facts 
which the pages of History everywhere reveal." 



To-day, everybody talks of Treitschke, though I 
doubt if half a dozen people in England have read him. 
His brilliant essays, Historische und politische AufscUze, 
illuminating almost every aspect of German contro- 
versy, have never been translated; neither has his 
Politik, a searching and cynical examination of the 
foundations of Political Science which exalts the State 
at the expense of Society ; and his Deutsche GeschicfUe, 
which was designed to be the supreme apologetic of 
Prussian policy, is also unknown in our tongue. But 
in Germany their vogue has been and still is enormous ; 
they are to Germans what Carlyle and Macaulay were 
to us. Treitschke, indeed, has much in common with 
Carlyle ; the same contempt for Parliaments and con- 
stitutional freedom ; the same worship of the strong 
man armed ; the same sombre, almost savage, irony, 
and, let it not be forgotten, the same deep moral fervour. 
His character was irreproachable. At the age of fifteen 
he wrote down this motto for his own : " To be always 
upright, honest, moral, to become a man, a man useful 
to humanity, a brave man — these are my ambitions." 
This high ideal he strove manfully to realize. But he 
was a doctrinaire, and of all doctrinaires the conscien- 
tious doctrinaire is the most dangerous. Undoubtedly, 
in his case, as in that of so many other enlightened 
Germans — Sybel, for example — his apostasy from 
Libaralism dated from the moment of his conviction 
that the only hope for German unity lay not in Parlia- 
ments but in the military hegemony of Prussia. The 
bloody triumphs of the Austro-Prussian War convinced 
him that the salvation of Germany was '* only possible 
by the annihilation of small States," that States rest 
on force, not consent, that success is the supreme test 
of merit, and that the issues of war are the judgment 
of God. He was singularly free from sophistry and 
never attempted, like Sybel, to defend the Ems telegram 


by the disingenuous plea that " an abbreviation is not 
a falsification " ; it was enough for him that the trick 
achieved its purpose. And he had a frank contempt 
for those Prussian jurists who attempted to find a legal 
title to Schleswig-Holstein ; the real truth of the matter, 
he roundly declared, was that the annexation of the 
Duchies was necessary for the realization of German 
aims. When he writes about war he writes without any 
sanctimonious cant : 

It is not for Germans to repeat the commonplaces of the 
apostles of peace or of the priests of Mammon, nor should 
they close their eyes before the cruel necessities of the age. 
Yes, ours is an epoch of war, our age is an age of iron. 
If the strong get the better of the weak, it is an inexorable 
law of life. Those wars of hunger which we still see to- 
day amongst negro tribes are as necessary for the 
economic conditions of the heart of Africa as the sacred 
war which a people undertakes to preserve the most 
precious belongings of its moral culture. There as here 
it is a struggle for life, here for a moral good, there for a 
material good. 

Readers of Bemhardi will recognize here the source 
of Bernhardi's inspiration. |f If Treitschke was a casuist 
at all — ^and as a rule he is refreshingly, if brutally, frank 
— ^his was the supreme casuistry of the doctrine that the 
end justifies the means. That the means may corrupt 
the end or become an end in themselves he never saw, 
or only saw it at the end of his life. He honestly 
believed that war was the nurse of manly sentiment and 
heroic enterprise, he feared the commercialism of modem 
times, and despised England because he judged her 
wars to have always been undertaken with a view to 
the conquest of markets. He sneers at the Englishman 
who " scatters the blessings of civilization with a Bible 
in one hand and an opium pipe in the other." He hon- 
estly believed that Germarty exhibited a purity of do- 
mestic life, a pastoral simplicity, and a deep religious faith 


to which no Eiiropean country could approach, and at 
the time he wrote the picture was not overdrawn. He 
has written passages of noble and tender sentiment, in 
which he celebrates the piety of the peasant, whose 
religious exercises were hallowed, wherever the German 
tongue was spoken, by the massive faith of Luther's 
great Hymn. Writing of German Protestantism as the 
comer-stone of German unity, he says : 

Everywhere it has been the solid rampart of our 
language and customs. In Alsace, as in the mountains of 
Transylvania and on the distant shores of the Baltic, 
as long as the peasant shall sing his old canticle 

Ein' feste Burg ist unser Gott 
German life shall not pass away. 

Those who would understand the strength of Treit- 
schke's influence on his generation must not lose sight 
of these purer elements in his teaching. 

But Treitschke was dazzled by the military successes 
of Prussia in 1866. With that violent reaction against 
culture which is so common among its professional 
devotees, and which often makes the men of the pen far 
more sanguinary than the men of the sword, he derided 
the old Germany of Goethe and Kant as " a nation of 
poets and thinkers without a polity " (" Ein staatloses 
Volk von Dichtem und Denkern "), and almost despised 
his own intellectual vocation. " Each dragoon," he 
cried enviously, "who knocks a Croat on the head does 
far more for the German cause than the finest political 
brain that ever wielded a trenchant pen." But for his 
grievous deafness he wotdd, like his father, have chosen 
the profession of arms. Failing that, he chose to teach. 
"It is a fine thing," he wrote, " to be master of the 
younger generation," and he set himself to indoctrinate 
it with the aim of German unity. He taught from 1859 
to 1875 successively at Leipzig, Freiburg, Kiel, and 
Heidelberg. From 1875 till his death in 1896 he occu- 


pied with immense 6clat the chair of modem history 
at Berlin. And so, although a Saxon, he enlisted his pen 
in the service of Prussia — ^Prussia which always knows 
how to attract men of ideas but rarely produces them. 
In the great roll of German statesmen and thinkers and 
poets — Stein, Hardenberg, Goethe, Hegd — you will 
look almost in vain for one who is of Prussian birth. 
She may pervert them ; she cannot create them. 

Treitschke's views were, of course, shared by many 
of his contemporaries. The Seminars of the German 
Universities were the arsenals that forged the intellec- 
tual weapons of the Prussian hegemony. Niebuhr, 
Ranke, Mommsen, Sybd, Hausser, Droysen, Gneist— 
all ministered to that ascendency, and they all have 
this in common — ^that they are merciless to the claims of 
the small States whose existence seemed to present an 
obstacle to Prussian aims. They are also united in 
common hatred of France, for they feared not only the 
adventures of Napoleon the Third but the levelling 
doctrines of the French Revolution. Burke's Letters 
on a Regicide Peace are not more violent against France 
than the writings of Sybd, Mommsen, and Treitschke. 
What, however, distinguishes Treitschke from his 
intdlectual confr^es is his thoroughness. They made 
reservations which he scorned to make. Sybel, for 
example, is often apologetic when he comes to the more 
questionable episodes in Prussian policy — ^the partition 
of Poland, the affairs of the duchies, the Treaty of Bale, 
the diplomacy of 1870 ; Treitschke is disturbed by no 
such qualms. Bismarck who practised a certain 
economy in giving Sybel access to official documents 
for his semi-official history of Prussian policy. Die 
Begrundung des deutschen Reichs, had much greater 
confidence in Treitschke and told him he felt sure he 
would not be disturbed to find that " our political linen 
is not as white as it might be." So, too, while others like 


Mommsen refused to go the whole way with Bismarck 
in domestic policy, and dung to their early Radicalism, 
Treitschke had no compunction about absolutism. He 
ended, indeed, by becoming the champion of the Junkers, 
and his history is a kind of hagiography of the Hohen- 
zoUems. ' ' Be governmental ' ' was his succinct maxim, 
and he rested his hopes for Germany on the bureaucracy 
and the army. Indeed, if he had had his way, he would 
have substituted a tmity state for the federal system 
of the German Empire, and would have liked to see 
all Germany an enlarged Prussia — " ein erweitertes 
Preussen " — a view which is somewhat difficult to recon- 
cile with his attacks on France as being " politically in a 
state of perpetual nonage," and on the French Govern- 
ment as hostile to all forms of provincial autonomy. 

By a quite natural transition he was led on from his 
championship of the tmity of Germany to a conception 
of her role as a world-power. He is the true father of 
Welt-politik. Much of what he writes on this head is 
legitimate enough. Like Hohenlohe and Bismarck 
he felt the humiliation of Germany's weakness in the 
councils of Europe. Writing in 1863 he complains : 

One thing we still lack — ^the State. Our people is the 
only one which has no common legislation, which can send 
no representatives to the Concert of Europe. No salute 
greets the German flag in a foreign port. Our Fatherland 
sails the high seas without colours like a pirate. 

Germany, he declared, must become " a power across 
the sea." This conclusion, coupled with bitter recollec- 
tions of the part played by England in the affair of the 
Duchies, no doubt accounted for his growing dislike of 

Among the English the love of money has killed every 
sentiment of honour and every distinction between what 
is just and unjust. They hide their poltroonery and their 
materialism behind grand phrases of unctuous theology. 


When' one sees the English press raising its eyes to 
heaven, frightened by the audacity of these faithless 
peoples in arms upon the Continent, one might imagine 
one heard a venerable parson droning away. As if the 
Almighty God, in Whose name Cromwell's Ironsides 
fought their battles, commanded us Germans to allow 
our enemy to march undisturbed upon Berlin. Oh, what 
hypocrisy ! Oh, cant, cant, cant ! 

Europe, he says elsewhere, should have put bounds 
to the overweening ambition of Britain by bringing to 
an end the crushing domination of the English Fleet 
at Gibraltar, at Malta, and at Corfu, and by " restoring 
the Mediterranean to the Mediterranean peoples." 
Thus did he sow the seeds of German maritime 

If I were asked to select the most characteristic of 
Treitschke's works I should be inclined to choose the 
vehement little pamphlet Was fordern wit von Frank- 
retch? in which he insisted on the annexation of 
Alsace-Lorraine. It is at once the vindication of 
Prussian policy, and, in the light of the last forty-four 
years, its condemnation. Like Mommsen, who wrote 
in much the same strain at the same time, he insisted 
that the people of the conquered provinces must be 
"forced to be free," that Morality and History (which 
for him are much the same thing) proclaim they are 
German without knowing it. 

We Germans, who know Germany and France, know 
better what is good for Alsace than the unhappy people 
themselves, who through their French associations have 
lived in ignorance of the new Germany. We will give 
them back their own identity against their will. We 
have in the enormous changes of these times too often 
seen in glad astonishment the immortal working of the 
moral forces of History (**dasunsterblicheFortwirkungder 
sittlichen M&chte dcr Geschichte ") to be able to believe 
in the unconditional value of a plebiscite on this matter. 
We invoke the men of the past against the present. 


The ruthless pedantry of this is characteristically 
Prussian. It is easy to appeal to the past against the 
present, to the dead against the living. Dead men tell 
no tales. It was, he admitted, true that the Alsatians 
did not love the Germans. These "misguided people" 
betrayed "that fatal impulse of Germans " to cleave to 
other nations than their own. " Well may we Germans 
be horrified," he adds, "when to-day we see these Ger- 
man people rail in German speeeh like wild beasts 
against their own flesh and blood as 'German curs' 
(' deutschen Hunde ') and ' stink -Prussians ' (' Stink- 
preussen')." Treitschke was too honest to deny it. 
There was, he ruefully admitted, something rather 
unlovely about the "civilizing" methods of Prussia. 
" Prussia has perhaps not always been guided by genial 
men." But, he argued, Prussia united under the new 
Empire to the rest of Germany would become humanized 
and would in turn humanize the new subject-peoples. 
Well, the forty-four years that have elapsed since 
Treitschke wrote have refuted him. Instead of a 
Germanized Prussia, we see a Prussianized Germany. 
Her " geniaUty " is the geniality of Zabem. The Poles, 
the Danes, and the Alsatians are still contumacious. 
Treitschke appealed to History and History has answered 

Had he never any misgivings ? Yes. After twenty- 
five years, and within a month of his death, this Hebrew 
prophet looking round in the year of grace 1895 on the 
" culture " of modem Germany was filled with appre- 
hension. On the twenty-fifth anniversary of Sedan 
he delivered an address in the University of Berlin 
which struck his fond disciples dumb. The Empire, he 
declared, had disarmed her enemies neither without nor 

In every direction our manners have deteriorated. The 
respect which Goethe declared to be the true end of all 


moral education disappears in the new generation with a 
giddy rapidity : respect of God, respect for the limits 
which nature and society have placed between the two 
sexes ; respect for the Fatherland, which is every day dis- 
appearing before the will-of-the-wisp of an indulgent 
humanity. The more culture extends, the more insipid it 
becomes ; men despise the profundity of the ancient world 
and consider only that which subserves their immediate 

The things of the mind, he cried, had lost their hold 
on the German people. Everyone was eager to get 
rich and to relieve the monotony of a vain existence by 
the cult of idle and meretricious pleasures. The signs 
of the times were everywhere dark and gloomy. The 
new Emperor (William the Second), he had already 
hinted, was a dangerous chariatan. 

The wheel had come full circle. Fustel de Coulanges 
was justified of his prophecy. And the handwriting 
on the walls of Destiny was never more legible than 


The contemplation of History, so a great master of the 
art has told us, may not make men wise but it is sure 
to make them sad. The austere Muse has never had a 
sadder page to show than that which is even now being 
added to her record. We see now the full fruition of the 
Gejman doctrine of the beatitude of War. In sorrow 
and in anguish, in anguish and in darkness, Belgiiun is 
weeping for her children and will not be comforted because 
they are not. The invader has spared neither age nor 
sex, neither rank nor function, and every insult that 
malice could invent, or insolence inspire, has been heaped 
upon her bowed head. The hearths are cold, the altars 
desecrated, the fields untilled, the granaries empty. 
The peasant watches the heavens,but he may not sow, 
he has regarded his fields but he might not reap. The 
very stones in her cities cry out ; hardly one of them is 
left upon another. No nation had ever given Europe 
more blithe and winning pledges of her devotion to the 
arts of peace. The Flemish school of painters had 
endowed the world with portraits of a grave tenderness 
which posterity might always admire but could never 
imitate. The chisels of her mediaeval craftsmen had left 
us a legacy of buoyant fancy in stone whose characters 
were ahve for us with the animation of the Canterbury 
Tales. All this the invader has stamped out Uke the 
plague. A once busy and thriving community begs its 
bread in alien lands. Never since the captivity of 
Babylon has there been so tragic an expatriation. Yet 
noble in her sorrow and exalted in her anguish, Bel* 
gium, like some patient caryatid, still supports the 



broken architrave of the violated Treaty. Her little 
army is still unconquered, her spirit is never crushed. 
She will arise purified by her sorrow and ennobled by 
her suffering, and generations yet unborn shall rise up 
to call her blessed. 



The armies of belligerent States on the outbreak of what is • 
hostilities, or indeed the moment war is declared, enter wSiV^ 
into a certain relation with one another which is known 
by the name of " A State of War." This relationship, 
which at the beginning only concerns the members of 
the two armies,- is extended, the moment the frontier 
is crossed, to all inhabitants of the enemy's State, so 
far as its territory is occupied; indeed it extends itself 
ultimately to both the movable and immovable 
property of the State and its citizens. 

A distinction is drawn between an " active " and a Active 
''passive " state of war. By the first is to be understood pS??i *'*^ 
the relation to one another of the actual fighting organs 
of the two belligerents, that is to say, of the persons 
forming the army, besides that of the representative 
heads of the State and of the leaders. By the second 
term, i,e,, the " passive " state of war, on the other hand, 
is to be understood the relationship of the hostile army 
to those inhabitants of the State, who share in the 
actual conduct of war only in consequence of their 
natural association with the army of their own State, 
and who on that account are only to be regarded as 
enemies in a passive sense. As occupjdng an interme- 
diate position, one has often to take into account a 
number of persons who while belonging to the army 
do not actually participate in the conduct of hostilities 



but continue in the field to pursue what is to some ex- 
tent a peaceful occupation, such as Army Chaplains, 
Doctors, Medical Officers of Health, Hospital Nurses, 
Volimtary Nurses, and other Officials, Sutlers, Contrac- 
tors, Newspaper Correspondents, and the like. 
That War h ^ Now although accorduig to the modem conception of 
oi^S^ war, it is primarily concerned with the persons belong- 
ing to the opposing armies, yet no citizen or inhabi- 
tant of a State occupied by a hostile army can alto- 
gether escape the burdens, restrictions, sacrifices, and 
inconveniences which are the natural consequence of 
a State of War. A war conducted with energy cannot 
be directed merely against the combatants of the 
Enemy State and the positions they occupy, but it will 
and must in like manner seek to destroy the total intel- 
lectual* and material resources of the latter.* Human- 
itarian claims such as the protection of men and their 
goods can only be taken into consideration in so far as 
the nature and object of the war permit. 
The utaget Consequently the " argument of war" permits every 
•^ ^"* belligerent State to have recourse to all means which 
enable it to attain the object of the war ; still, practice 
has taught the advisability of allowing in one's own 
interest the introduction of a limitation in the use of 
certain methods o( war and a total renunciation of the 
use of others. Chivalrous feelings, Christian thought, 

^ [The word used is "geistig/' as to the exact meaning of which see 
translator's footnote to page 55. What the passage amounts to is 
that the belligerent should seek to break the spirit of the civil 
population, terrorize them, humiliate them, and reduce them to 
despair. — J .H.M.] 

'Moltke, in his well-known correspondence with Professor 
. Bluntschli, is moved to denounce the St. Petersburg Convention 
which designs as" leseulbut legitime " of waging war, TafiFaiblisse- 
ment des forces militaires/' and this he denies most energetically on 
the ground that, on the contrary, all the resources of the enemy, 
country, finances, railways, means of subsistence, even the prestige 
of the enemy's government, ought to be attacked. [This, of course, 
means the policy of " Terrorismus," i.e., terrorization. — J.H.M.} 


higher civilization and, by no means least of alt, the 
recognition of one's own advantage, have led to a 
voluntary and self-imposed limitation, the necessity 
of which is to-day tacitly recognized by all States and 
their armies. They have led in the course of time, in 
the simple transmission of knightly usage in the pass- 
ages of arms, to a series of agreements, hallowed by 
tradition, and we are accustomed to stun these up in 
the words " usage of war " (Kriegsbrauch), " custom 
of war" (Kriegssitte), "or fashion of war" (Kriegs- 
manier). Customs of this kind have always existed, 
even in the times of antiquity ; they differed according 
to the civilization of the (Afferent nations and their 
public economy, they were not always identical, even 
in one and the same conflict, and they have in the 
course of time often changed ; they are older than 
any scientific law of war, they have come down to us 
unwritten, and moreover they maintain themselves in 
full vitality ; they have therefore won an assured 
position in standing armies according as these latter 
have been introduced into the systems of almost every ' 
European State. 

The fact that such limitations of the unrestricted of tha 
and reckless application of all the available means writtL^ 
for the conduct of war, and thereby the humaniza- i^&S^'Jf 
lion of the customary methods of pursuing war, really ^*^" 
exist, and are actually observed by the armies of all 
civilized States, has in the course of the nineteenth 
century often led to attempts to develop, to extend, 
and thus to make universally binding these pre- 
existing usages of war ; to elevate them to the level 
of laws binding nations and armies, in other words ta 
create a codex belli ; a law of war. All these attempts 
have hitherto, with some few exceptions to be mem- 
tioned later, completely failed. If, therefore, in the * 
following work the expression " the law of war " is 

emottoi*^^Jf Consequently the usage of war is even now the only 


used, it must be understood that by it is meant not a 
lex scripta introduced by international agreements; but 
only a reciprocity of mutual agreement; a limitation 
of arbitrary behaviour, which custom and convention- 
ality, human friendliness and a calculating egotism 
have erected, but for the observance of which there 
exists no express sanction, but only " the fear of re- 
prisals " decides. 


B^m^tu- means of regulating the relations of belligerent States 
to one another. But with the idea of the usages of war 
will always be bound up the character of something 
transitory, inconstant, something dependent on factors 
outside the army. Nowadays it is not only the army 
which influences the spirit of the customs of war 
and assures recognition of its unwritten laws. Since 
the almost imiversal introduction of conscription, 
the peoples themselves exercise a profound influence 
upon this spirit. In the modem usages of war one 
can no longer regard merely the traditional inheri- 
tance of the ancient etiquette of the profession of 
arms, and the professional outlook accompanying 
it, but there is also the deposit of the currents of 
thought which agitate our time. But since the tend- 
ency of thought of the las;t century was dominated 
* essentially by humanitarian considerations which not 
infrequently degenerated into sentimentality and 
flabby emotion (Sentimentalitdi und weichlicher GefUhls- 
chwdrmerei) there have not been wanting attempts to 
influence the development of the usages of war in a 
way which was in fundamental contradiction with the 
nature of war and its object. Attempts of this kind 
will also not be wanting in the future, the more so as 
these agitations have found a kind of moral recognition 
in some provisi(xis of the Geneva Convention and the 
Brussels and Hague Conferences. ^ 



Moreover the officer is a chDd of his time. He iscmdtyis 
subject to the intellectual' tendencies which influence ^Z **' 

his own nation ; the more educated he is the more will iSS'^Jit 
this be the case. The danger that, in this way, he will Officer 
arrive at false views about the essential character of war 
must not be lost sight of. The danger can only be met 
by a thorough study of war itself. By steeping himself 
in military history an officer will be able to guard him- * 
self against excessive humanitarian notions, it will teach 
him that certain severities are indispensable to war, nay 
more, that the only true hmnanity very often lies in a 
ruthless application of them. It will also teach him how 
the rules of belligerent intercourse in war have devel- 
oped, how in the course of time they have solidified into 
general usages of war, and finally it will teach him 
whether the governing usages of war are justified or not, 
whether they are to be modified or whether they are to 
be observed. But for a study of military history in this 
light, knowledge of the fundamental conceptions of 
modem international and military movements is 
certainly necessary. To present this is the main purpose 
of the following work. ^ 

[^ " Den geistigen Strdmmigen." " Intellectual " is the nearest 
equivalent in English, but it barely conveys the spiritual aureole 
surrounding the word. — J.H.M.] 





Since the subjects of enemy States have quite different ^h© •» 
rights and duties according as they occupy an active ^53,^^''. 
or a passive position, the question arises : Who is to be no*- 
recognized as occupying the active position, or what 
amounts to the same thmg — Who belongs to the hostile 
army ? This is a question of particular importance. 

According to the universal usages of war, the follow- 
ing are to be regarded as occupying an active position : 

1. The. heads of the enemy's state and its ministers, 

even though they possess no military rank. 

2. The regular army, and it is a matter of indifference 

whether the army is recruited voluntarily or by 
conscription; whether the army consists of sub- 
jects or aliens (mercenaries) ; whether it is brought 
together out of elements which were already in the 
service in time of peace, or out of such as are 
enrolled at the moment of mobilization (militia, 
reserve, national guard and Landsturm). 

3. Subject to certain assumptions, irregular combatants, 

also, ue., such as are not constituent parts of the 
regular army, but have only taken up arms for the 
length of the war, or, indeed, for a particular task 
of the war. 

Only the third class of persons need be more closely Th« in«fu 
considered. In then: case the question how far the*"* 
rights of an active position are to be conceded to them 



has at all times been matter of controversy, and the 
treatment of irregular troops has in consequence varied 
considerably. Generally speaking the study of military 
history leads to the conclusion that the Commanding 
OflBicers of regular armies were always inclined to regard 
irregular troops of the enemy with distrust, and to apply 
to them the contemporary laws of war with peculiar 
severity. This unfavourable prejudice is based on 
the ground that the want of a military education and 
of stem discipline among irregular troops, easily leads 
to transgressions and to non-observance of the usages 
of war, and that the minor skirmishes which they prefer 
to indulge in, and which by their very nature lead to 
individual enterprise, open the door to irregularity and 
savagery, and easily deteriorate into robbery and unau- 
thorized violence, so that in every case the general inse- 
curity which it develops engenders bitterness, fury, and 
revengeful feelings in the harassed troops, and leads to 
cruel reprisals. Let anyone read the combats of the 
French troops in the Spanish Peninsula in the years 1808 
to 1814, in Tyrol in 1809, in Germany in 1813, and 
also those of the English in their different Colonial wars, 
or again the Carlist Wars, the Russo-Turkish War, and 
the Franco-Prussian War,^ and one will everywhere find 
this experience confirmed. 
Each state If these poiuts of view are on the whole decisive 
to ttsdT*^ against the employment of irregular troops^ yet on the 
other hand, it must be left to each particular State to 
determine how far it will disregard such considerations ; 
from the point of view of international law no State is 
compelled to limit the instruments of its military 
. operations to the standing army. It is, on the contrary, 
completely justified in drawing upon all the inhabitants 
capable of bearing arms, entirdy according to its discre- 

^ [The General Staff always refers to the war of X870 at " the 
German-French War." — J.H.M.] 


tion, and in imparting to them an authorization to 
participate in the war. 

This public authorization has therefore been until rh* o^^^ 
quite recently regarded as the presumed necessary thOTi»tion"" 
condition of any recognition of combatant rights. 

Of course there are numerous examples in military Bzceptions 
history in which irr^ular combatants have been recog- J^^^JX!!*^* 
nized as combatants by the enemy, without any public 
authorization of the kind ; thus in the latest wars of 
North America, Switzerland, and Italy, and also in the 
case of the campaign (without any kind of commission 
from a State) of Garibaldi against Naples and Sicily 
in the year i860. But in all these cases the tacitly 
conceded recognition originated not out of any obliga- 
tory principles of international law or of military usage, . 
but simply and solely out of the fear of reprisals. The 
power to prevent the entrance on the scene of these 
irregular partisans did not exist, and it was feared that 
by not recognizing their quality as combatants a cruel 
character might be given to the war, and consequently 
that more harm than good might result to the parties 
themselves. On the other hand there has always hmfm 
been a universal consensus of opinion against recog- ^™'** 
nizing irregulars who make their appearance indi\4du- 
ally or in small bands, and who conduct war in some 
measure on their own account (auf eigene Faust) 
detached from the army, and such opinion approves of 
the punishment of these offenders with death. 

This legal attitude which denies every unauthorized 
rising and identifies it with brigandage was taken up by 
the revolutionary armies of France towards the insur- 
rection in La Vend^, and again by Napoleon in his 
proceedings against SchiU and Domberg in the year 
1809, and again by Wellington, Schwarzenberg, and 
Bliicher, in the Proclamations issued by them in France 
in the year 1814, and the German Army adopted the samt 


standpoint in the year 1870-71, when it demanded that : 
" Every prisoner who wishes to be treated as a prisoner 
of war must produce a certificate as to his character 
as a French soldier, issued by the legal authorities, and 
addressed to him personally, to the efiect that he has 
been called to the Colours and is borne on the Roll of 
a corps organized on a mihtary footing by the French 
Modern In the coutroversies which have arisen since the war 

^'**^' of 1870-71 over the different questions of international 
law and the laws of war, decisive emphasis has no 
longer been placed upon the question of pubUc authoriza- 
tion, and it has been proposed, on grounds of expediency, 
to recognize as combatants such irregulars as are indeed 
without an express and immediate pubUc authoriza- 
tion^ but who are organized in military fashion and are 
imder a responsible leader. The view here taken was 
that by a recognition of these kind of irregular troops 
the dangers and horrors of war would be diminished, 
and that a substitute for the legal authorization lacking 
in the case of individuals offers itself in the military 
. organization and in the existence of a leader responsible 
to his own State. 

Moreover the Brussels Declaration of August 27, 1874, 

and in consonance with it the Manual of the InstitiUe 

of International Law, desire as the first condition of 

recognition as combatants " that they have at their 

head a personality who is responsible for the behaviour 

of those imder hun to his own Government/' * 

The German Considered from the military point of view there is 

vitiT^ not much objection to the omission of the demand for 

pubUc authorization, so soon as it becomes a question 

of organized detachments of troops, but in the case of 

hostile individuals who appear on the scene we shall 

none the less be unable to dispense with the certificate 

»Art. g (I). 


of membership of an organized band, if such individuals 
are to be regarded and treated as lawful belligerents. 

But the organization of irregulars in military bands 
and their subjection to a responsible leader are not by 
themselves sufficient to enable one to grant them the 
status of belligerents ; even more important than these 
is the necessity of being able to recognize them as such 
and of their canying their arms openly. The soldier 
must know who he has against him as an active oppo- 
nent, he must be protected against treacherous killing 
and against any military operation which is prohibited 
by the usages of war among regular armies. The 
chivalrous idea which rules in the regular armies of all 
civiUzed States always seeks an open profession of one's 
belligerent character. The demand must, therefore, be 
insisted on that irregular troops, although not in 
uniform, shall at least be distinguishable by visible signs 
which are recognizable at a distance.* Only by such 
means can the occurrence of misuse in the practice of 
war on the one side, and the tragic consequences of the 
non-recognition of combatant status on the other, be 
made impossible. The Brussels Declarations also there- 
fore recommend, in Art. 9 (2 and 3), that they, i.e., the 
irregular troops, should wear a fixed sign which is visible 

^ The necessity of an adequate mark of distinction was not denied 
even on the part of the French in the violent controversy which 
blazed up between the German and French Governments on the 
subiect of the Franctireurs in the war of 1 870-1. The dispute was 
mainly concerned with the question whether the marks worn by 
the Franctireurs were sufficient or not. This was denied on the 
German side in many cases with all the greater justification as the 
usual dress of the Franctireurs, the national blue, was not to be dis- 
tinguished from the customary national dress, as it was merely a 
blouse furnished with a red armlet. Besides which, on the approach 
of German troops, the armlet was often taken off and the weapons 
were concealed, thereby offending against the principle of open bear- 
ing. These kind of offences, as also the lack of a firm organization 
and the consequent irregularities, were the simple reason why stern 
treatment of the Franctireurs in the Franco-Prussian War was prac- 
tised and had necessarily to be practised. 



from a distance^ and that they should carry their 
weapons openly. The Hague Convention adds to these 
three conditions yet a fourth, " That they observe the 
laws and usages of war in their military operations." 
The uoh This condition must also be maintained if it becomes 
a question of the levie en masse, the arming of the whole 
population of the country, province, or district; in 
other words the so-called people's war or national war.* 
Starting from the view that one can never deny to the 
population of a country the natural right of defence of 
, one's fatherland, and that the smaller and consequently 
less powerful States can only find protection in such 
levees en masse, the majority of authorities on Inter- 
national law have, in their proposals for codification, 
sought to attain the recognition on principle of the 
combatant status of all these kinds of people's cham- 
pions, and in the Brussels declaration and the Hague 
Regulations the aforesaid condition* is omitted. As 
against this one may nevertheless remark that the con- 
dition requiring a military organization and a clearly 
recognizable mark of being attached to the enemy's 
troops, is not sjmonymous with a denial of the natural 
right of defence of one's country. It is therefore not a 
question of restraining the population from seizing 
arms but only of compelling it to do this in an organized 
The Hague manner. Subjection to a responsible leader, a military 
Sm^f da organization, and clear recognizabiUty cannot be left 
out of account unless the whole recognized foimdation 
for the admission of irregulars is going to be given up 
altogether, and a conflict of one private individusil 

^ The efTacement of the distinction between fighting forces and 
peaceful population on the part of the Boers no doubt made many of 
the severities practised by the English necessary. 

[■ i.e., the condition as to having a distinctive mark. So, too, the 
Hague Regulations dispense with the other condition (of having a 
responsible leader and an organization) in such a case of a levh en 
masse. See Regulations, Art. II. — J.H.M.] 


against another is to be introduced again, with all its a Aort^wmy 
attendant horrors, of which, for example, the proceed- Defends of 
ings in Bazeilles in the last Franco-Prussian War^^^***^* 
afford an instance. If the necessary organization does 
not really become established — a case which is by no 
means Ukely to occur often — ^then nothing remains but 
a conflict of individuals, and those who conduct it 
cannot claim the rights of an active military status. 
The disadvantages and severities inherent in such a 
state of afiairs are more insignificant aiid less inhuman 
than those which would result from recognition.* 

^ Professor Dr. C. Liider, Das Landkrie^srecht, Hamburg, 1888. 
[This is the amiable professor who writes in Holtzendorfi's Handbuch 
des Volkertechts (IV« 378) of " the terrorism so often necessary in 
war."— J.H.M.] 

[The above paragraph, it will be observed, completely throws over 
Article II of the Hague Regulations extending protection to the 
defenders of their country. — J.H.M.] 



vioieoee umi B y the means of conducting war is to be understood all 
^^'""**^' those measures which can be taken by one State against 
the other in order to attain the object of the war, to 
compel one's opponent to submit to one's will ; they 
may be summarized in the two ideas of Violence and 
Cunning, and judgment as to their appUcability may be 
embodied in the following proposition : 

What is permissible includes every means of war 
without which the object of the war caimot be 
obtained ; what is reprehensible on the other hand 
includes every act of violence and destruction which 
is not demanded by the object of war. 

It follows from these universally valid principles 
that wide limits are set to the subjective freedom and 
arbitrary judgment of the Commanding Ofl&cer ; the 
precepts of civiUzation, freedom and honour, the 
traditions prevalent in the army, and the general usages 
of war, will have to guide his decisions. 


The most important instruments of war in the pos- 
session of the enemy are his army, and his military 
positions ; to make an end of them is the first object 
of war. This can happen : 

1. By the annihilation, slaughter, or wounding of the 

individual combatants. 

2. By making prisoners of the same, 

3. By siege and bombardment. 



I. Annihilation, slaughter, and wounding of the hostile 

In the matter of making an end of the enemy's forces how to 
by violence it is an incontestable and self-evident rule S*&*° 
that the right of killing and aimihilation in regard to the ^°*™^* 
hostile combatants is inherent in the war power and its 
organs, that all means which modem inventions afford, 
including the fullest, most dangerous, and most massive 
means of destruction, may be utilized ; these last, just 
because they attain the object of war as quickly as 
possible, are on that account to be regarded as indispen- 
sable and, when closely considered, the most human. 

As a supplement to this rule, the usages of war recog- The Rules oi 
nize the desirability of not employing severer forms of ""** 
violence if and when the object of the war may be 
attained by milder means, and furthermore that certain 
means of war which lead to unnecessary suffering are 
to be excluded. To such belong : 

The use of poison both individually and collectively 
(such as poisoning of streams and food supplies') the 
propagation of infectious diseases. 

Assassination, proscription, and outlawry of an 

The use of arms which cause useless suffering, such as 
soft-nosed bullets, glass, etc. 

The killing of wounded or prisoners who are no longer 
capable of offering resistance.* 

^ Notoriously resorted to very often in the war of the Spanish 
against Napoleon. 

■ Napoleon was, in the year 1815, declared an outlaw by the Allies. 
Snch a proceeding is not permissible by the International Law of 
to-day since it involves an indirect invitation to assassination. Also 
the ofier of a reward for the capture of a hostile prince or commander 
as occurred in August, 181 3, on the part of the Crown Prince of 
Sweden in regard to Napoleon, is no longer in harmony with the 
views of to-day and the usages of war. [But to hire a third person 
to assassinate one's opponent is claimed by the German General Stafi 
(see II, b, below) as quite legitimate. — J.H.M.] 

* As against this there have been many such offences committed 
in the wars of recent times, principally on the Turkish side in the 
Russo-Tmrkish War. 


The refusal of quarter to soldiers who have laid down 
their arms and allowed themselves to be captured. 

The progress of modem invention has made super- 
fluous the express prohibition of certain old-fashioned 
but formerly legitimate instruments of war (chain shot, 
red-hot shot, pitch balls, etc.), since others, more effec- 
tive, have been substituted for these ; on the other hand 
the use of projectiles of less than 400 grammes in weight 
' is prohibited by the St. Petersburg Convention of 
December nth, 1868. (This only in the case of 

He who offends against any of these prohibitions is 
to be held responsible therefor by the State. If he is 
captured he is subject to the penalties of military law. 

cdoowd Closely connected with the unlawful instruments of 
2]SSS." war is the emplojrment of uncivilized and barbarous 
peoples in European wars. Looked at from the point 
of view of law it can, of course, not be forbidden to any 
State to call up armed forces from its extra-European 
colonies, but the practice stands in express contradic- 
tion to the modem movement for humanizing the 
conduct of war and for alleviating its attendant 
sufferings, if men and troops are employed in war, who 
are without the knowledge of civilized warfare and by 
whom, therefore, the very cruelties and inhmnanities 
forbidden by the usages of war are committed. The 
emplojrment of these kinds of troops is therefore to be 
compared with the use of the instruments of war already 
described as forbidden. The transference of African 
and Mohammedan Turcos to a European seat of war 
in the year 1870 was, therefore, undoubtedly to be 
regarded as a retrogression from civilized to barbarous 

1 This prohibition was often sinned against by the French in the 
war of i87<^-7i. Cp. Bismarck's despatches of Jan. 9th and Feb. 7th, 
1871 ; also Bluntschli in Holizendorjfs Jahrbucht I, p. 279, where a 
similar reproach brought against the Baden troops is refuted. 


warfare, since these troops had and could have no con- 
ception of European-Christian culture, of respect for 
property and for the honour of women, etc.* 

2. Capture of Enemy Combatants 

If individual members or parties of the army fall into Prisoners of 
the power of the enemy's forces, either through their "' 
being disarmed and defenceless, or through their being 
obUged to cease from hostilities in consequence of a 
formal capitulation, they are then in the position of 
" prisoners of war," and thereby in some measure 
exchange an active for a passive position. 

According to the older doctrine of international law v« 
aU persons belonging to the hostile State, whether com- ^^^ ' 
batants or non-combatants, who happen to fall into the 
hands of their opponent, are in the position of prisoners 
of war. He could deal with them according to his 
pleasure, ill-treat them, kill them, lead them away into 
bondage, or sell them into slavery. History knows but 
few exceptions to this rule, these being the result of 
particular treaties. In the Middle Ages the Church 
tried to intervene as mediator in order to ameliorate 
the lot of the prisoners, but without success. Only the 
prospect of ransom, and chivalrous ideas in the case of 
individuals, availed to give any greater protection. It 
is to be borne in mind that the prisoners belonged to 

* If we have principally in view the employment of uncivilized and 
barbarous troops on a European seat of war, that is dimply because 
the war of 1870 lies nearest to us in point of time and of space. On 
a level with it is the employment of Russo- Asiatic nationalities in 
the wars of emancipation, of Indians in the North-American War, of 
the Circassians in the Polish Rising, of the Bashi-bazouks in the 
Russo-Turkish War, etc. As regards the Turcos, a Belgian writer 
Rolin-Jacqu6myns said of them in regard to the war of 1859, " les 
allures et la conduite des Turcos avaient soulev6 d'universels 
d6goiits." On the other side it is not to be forgotten that a section 
of the French Press in 1870 praised them precisely because of their 
bestialities and incited them to such things, thus in the Independance 
algerienne : " Arri^re la piti61 arri^re les sentiments d'humanit^l 
Mort, pillage et incendiel " 



him who had captured them, a conception which began 
to disappear after the Thirty Years War. The treatment 
of prisoners of war was mostly harsh and inhuman ; 
still, in the seventeenth century, it was usual to secure 
their lot by a treaty on the outbreak of a war. 

The credit of having opened the way to another con- 
ception of war captivity belongs to Frederick the Great 
and Franklin, inasmuch as they inserted in the famous 
Treaty of friendship, concluded in 1785 between Prussia 
and North America, entirely new regulations as to the 
treatment of prisoners of war. 
The Modem Th^ Complete change in the conception of war intro- 
^^**^- duced in recent times has in consequence changed all 
earlier ideas as to the position and treatment of prisoners 
of war. Starting from the principle that only States and 
not private persons are in the position of enemies in time 
of war, and that an enemy who is disarmed and taken 
prisoner is no longer an object of attack, the doctrine of 
war captivity is entirely altered and the position of 
prisoners has become assimilated to that of the wounded 
and the sick. 
p^iaooea <rf ^hc present position of international law and the law 
be'hc^o^- ^^ ^^^ ^^ ^^^ subject of prisoners of war is based on the 
ably treated, fundamental conception that they are the captives not 
of private individuals, that is to say of Commanders, 
Soldiers, or Detachments of Troops, but that they are 
the captives of the State. But the State regards them 
as persons who have sunply done their duty and obeyed 
the commands of their superiors, and in consequence 
views their captivity not as penal but merely as pre- 

It therefore follows that the object of war captivity 
is simply to prevent the captives [from taking any further 
part in the war, and that the State can, in fact, do 
everything which appears necessary for securing the 
captives, but nothing beyond that. The captives have 


therefore to submit to all those restrictions and incon- 
veniences which the purpose of securing them necessi- 
tates ; they can collectively be involved in a common 
suffering if some individuals among them have pro- 
voked sterner treatment ; but, on the other hand, they 
are protected against imjustifiable severities, ill-treat- 
ment, and imworthy handling ; they do, indeed, lose 
their freedom, but not their rights ; war captivity is, 
in other words, no longer an act of grace on the part of 
the victor but a right of the defenceless. 

According to the notions of the laws of war to-day the who n«ybe 
following persons are to be treated as prisoners of war : ^en. 

1. The Sovereign, together with those members of his 

family who were capable of bearing arms, the chief 
of the enemy's State, generally speaking, and the 
Ministers who conduct its policy even though they 
are not among the individuals belonging to the 
active army.* 

2. All persons belonging to the armed forces. 

3. All Diplomatists and Civil Servants attached to the 


4. All civilians staying with the army, with the approval 

of its Commanders, such as transport, sutlers, con- 
tractors, newspaper correspondents, and the like. 

5. All persons actively concerned with the war such as 

Higher Officials, Diplomatists, Couriers, and the 
like, as also all those persons whose freedom can 
be a danger to the army of the other State, for 
example, Journalists of hostile opinions, promin- 
ent and influential leaders of Parties, Clergy who 
excite the people, and such like.* 

6. The mass of the population of a province or a dis- 

trict if they rise in defence of their country. 

* Recent examples : the capture of the King of Saxony by the 
Allies after the Battle of Leipzig, and also of Napoleon, that of the 
Elector of Hesse, 1866, Napoleon III, 1870, Abd-el-Kader, 1847, and 
Schamyl, 1859. 

* In this light must be judged the measures taken in 1 866 by General 
Vogel von Falckensteiii against certain Hanoverian citizens although 
these measures have often been represented in another light. 



The points of view regarding the treatment of 
prisoners of war may be summarized in the following 
rules : 

Prisoners of war are subject to the laws of the State 
whi^h has captured them. 
The tw^ The relation of the prisoners of war to their own 

meat of Irl- • • *,. ,1 • j»»j 

of former supenors ceases durmg their captivity; a 
captured ofl&cer's servant steps into the position of a 
private servant. Captured ofl&cers are never the 
superiors of soldiers of the State which has captured 
them ; on the contrary, they are under the orders of such 
of the latter as are entrusted with their custody. 

The prisoners of war have, in the places in which they 
are quartered, to submit to such restrictions of their 
Uberty as are necessary for their safe keeping. They 
have strictly to comply with the obUgation imposed 
upon them, not to move beyond a certain indicated 
Their con- Thcse measurcs for their safe keeping are not to be 
™*° exceeded ; in particular, penal confinement, fetters, 
and unnecessary restrictions of freedom are only to be 
resorted to if particular reasons exist to justify or 
necessitate them. 

The concentration camps in which prisoners of war 
are quartered must be as healthy, clean, and decent as 
possible ; they should not be prisons or convict 

It is true that the French captives were transported 
by the Russians to Siberia as malefactors in the years 
1812 and 1813. This was a measure which was not 
illegal according to the older practice of war, but it is 
no longer in accordance with the legal conscience of to- 
day. Similarly the methods which were adopted during 
the Civil War in North America in a prison in the 
Southern States, against prisoners of war of the Union 
Forces, whereby the men were kept without air and 


nourishment and thus badly treated, were abo agamst 
the practice of the law of war. 

Freedom of movement within these concentration 
camps or within the whole locality may be permitted 
if there are no special reasons against it. But obviously 
prisoners of war are subject to the existing, or to the 
appointed rules of the establishment or garrison. 

Prisoners of war can be put to moderate work pro- The wsoner 
portionate to theu: position m life ; work is a saieguard master, 
against excesses. Also on grounds of health this is 
desirable. But these tasks should not be prejudicial 
to health nor in any way dishonourable or such as 
contribute directly or indirectly to the military opera- • 
tions against the Fatherland of the captives. Work 
for the State is, according to The Hague Regulations, 
to be paid at the rates payable to members of the army 
of the State itself. 

Should the work be done on account of other public 
authorities or of private persons, then the conditions 
will be fixed by agreement with the military authorities. 
The wages of the prisoners of war must be expended in 
the improvement of their condition, and anjrthing that . 
remains should be paid over to them after deducting 
the cost of their maintenance when they are set free. . 
Voluntary work in order to earn extra wages is to be 
allowed, if there are no particular reasons against it.* 
Insurrection, insubordination, misuse of the freedom 
granted, will of course justify severer confinement in 
each case, also [punishment, and so will crimes and 

Attempts at escape on the part of individuals who FUght 
have not pledged their word of honour might be regarded 

* Thus the French prisoners in 1 870-1 were very thankful to 
find employment in great numbers as harvest workers, or in the 
counting houses of merchants or in the factories of operatives or 
wherever an opportunity occurred, and were thereby enabled to 
earn extra wages. 




The Infoct* 




as the expression of a natural impulse for liberty, and 
not as a crime. They are therefore to be punished by 
restriction of the privUeges granted and a sharper super- 
vision but not with death. But the latter punishment 
will follow of course in the case of plots to escape, if only 
because of the danger of them. In case of a breach 
of a man's parole the punishment of death may reason- 
ably be incurred. In some circumstances, if necessity 
and the behaviour of the prisoners compel it, one 
is justified in taking measures the effect of which is to 
involve the innocent with the guilty.* 

The food of the prisoners must be sufficient and suit- 
able to their rank, yet they will have to be content with 
the customary food of the country ; luxuries which the 
prisoners wish to get at their own expense are to be 
permitted if reasons of discipline do not forbid. 

Correspondence with one's home is to be permitted, 
likewise visits and intercourse, but these of course must 
be watched. 

The prisoners of war remain in possession of their 
private property with the exception of arms, horses, and 
documents of a military purport. If for definite reasons 
any objects are taken away from them, then these must 
be kept in suitable places and restored to them at the 
end of their captivity. 

Article 14 of The Hague Regulations prescribes that 
on the outbreak of hostilities there shall be established 
in each of the belligerent States and in a given case in 
neutral States, which have received into their territory 
any of the combatants, an information bureau for 

^Thus General von Falckenstein in 1870, in order to check the 
prevalent escaping of French ofi&cers, commanded that for every 
escape ten ofi&cers whose names were to be determined by drawing 
lots should be sent ofi, with the loss of all privileges of rank, to close 
confinement in a Prussian fortress, a measure which was, indeed, 
often condemned but against which nothing can be said on the score 
of the law of nations. 


prisoners of war. Its duty will be to answer all in- 
quiries concerning such prisoners and to receive the 
necessary particulars from the services concerned in 
order to be able to keep a personal entry for every 
prisoner. The information bureau must always be 
kept well posted about everything which concerns a 
prisoner of war. Also this information bureau must 
collect and assign to the legitimate persons all personal 
objects valuables, letters, and the like, which are found 
on the field of battle or have been left behind by dead ' 
prisoners of war in hospitals or field-hospitals. The 
information bureau enjoys freedom from postage, as do 
generally all postal dispatches sent to or by prisoners 
of war. Charitable gifts for prisoners of war must be 
free of customs duty and also of freight charges on the 
public railways. 

The prisoners of war have, in the event of their being 
wounded or sick, a claim to medical assistance and care 
as understood by the Geneva Convention and, so far as is 
possible, to spiritual ministrations also. 

These rules may be shortly summarised as follows : 

Prisoners of war are subject to the laws of the country 
in which they find themselves, particularly the rules in 
force in the army of the local State ; they are to be 
treated like one's own soldiers, neither worse nor better. 

The following considerations hold good as regard when prfs- 
the imposition of a death penalty in the case of prison- bS^t°to^ 
ers ; they can be put to death : ^^^ 

1. In case they commit offences or are guilty of 

practices which are punishable by death by civil or 
military laws. 

2. In case of insubordination, attempts at escape, etc., 

deadly weapons can be employed. 

3. In case of overwhelming necessity, as reprisals, 

either against similar measures, or against other 
irregularities on the part of the management of the 
enemy's army. 


4. In case of overwhelming necessity, when other means 
of precaution do not exist and the existence of the 
prisoners becomes a danger to one's own existence. 

"Reprisals.*' As rc^ids the admissibility of reprisals, it is to be 
remarked that these are objected to by numerous 
teachers of international law on grounds of humanity. 
To make this a matter of principle, and apply it to every 
case exhibits, however, " a misconception due to intelli- 
gible but exaggerated and unjustifiable feelings of 
humanity, of the significance, the seriousness and the 
right of war. It must not be overlooked that here 
also the necessity of war, and the safety of the State 
are the first consideration, and not regard for the imcon- 
ditional freedom of prisoners from molestation."^ 
One must That prfsouets should only be killed in the event of 
^^^ extreme necessity, and that only the duty of self-preser- 
vation and the security of one's own State can justify a 
proceeding of this kind is to-day universally admitted. 
But that these considerations have not always been 
decisive is proved by the shooting of 2,000 Arabs at 
Jaffa in 1799 by Napoleon ; of the prisoners in the rising 
of La Vendee ; in the Carlist War ; in Mexico, and in the 
American War of Secession, where it was generally 
a case of deliverance from biurdensome supervision 
and the difficulties of maintenance ; whereas peoples 
of a higher morality such as the Boers in our own days, 
' finding themselves in a similar position, have preferred 
to let their prisoners go. For the rest, calamities such as 
might lead to the shooting of prisoners are scarcely likely 
to happen under the excellent conditions of transport 
in oiu: own time and the correspondingly small difficulty 
of feeding them — in a European campaign.* 

1 [Professor] Liider, Das Landkriegsrecht, p. 73. 

' What completely false notions about the right of killing prisoners 
of war are prevalent even among educated circles in France is shown 
by the widely-circulated novel Les Braves Gens, by Margueritte, in 
which, on page 360 of the chapter " Mon Premier/' is told the story, 


The captivity'of war comes to an end : The end of 

1. By force of circumstances which de facto determine ^p**^*^ 

it, for example, successful escape, cessation of the 
war, or death. 

2. By becoming the subject of the enemy's state. 

3. By release, whether conditional or unconditional, 

unilateral or reciprocal. 

4. By exchange. 

As to I. With the cessation of the war every reason 
for the captivity ceases, provided there exist no special 
grounds for another view. It is on that account that 
care should be taken to discharge prisoners imme- 
diately. There remain only prisoners sentenced to 
punishment or awaiting trial, i,e,, until the expiation of 
their sentence or the end of their trial as the case may be. 

As to 2. This pre-supposes the readiness of the 
State to accept the prisoner as a subject. 

As to 3. 'A man released under certain conditions has Parde. 
to fulfil them without question. If he does not do this, 
and again falls into the hands of his enemy, then he must 
expect to be dealt with by military law, and indeed 
according to circtunstances with the punishment of 
death. A conditional release cannot be imposed on 
the captive ; still less is there any obligation upon the 
state to discharge a prisoner on conditions — ^for example, 
on his parole. The release depends entirely on the 
discretion of the State, as does also the determination 
of its limits and the persons to whom it shall apply. 

based apparently on an actual occurrence, of the shooting of a cap- 
tured Prussian soldier, and it is excused simply because the informa- 
tion given by him as to the movements of his own people turned 
out to be untrue. The cowardly murder of a defenceless man is re- 
garded by the author as a stem duty, due to war, and is thus declared 
to be in accordance with the usages of war. [The indignation of the 
German General Stafi is somewhat overdone, as a little further on 
(see the chapter on treatment of inhabitants of occupied territory) 
in the War-Book they advocate the ruthless shooting or hanging 
of an inhabitant who, heixngfofced to guide an enemy army against 
his own, leads them astray. — J.H.M.] 


The release of whole detachments on their parole is 
not usual. It is rather to be regarded as an arrange- 
ment with each particular individual. 

Arrangements of this kind, every one of which is as a 
rule made a conditional discharge, must be very pre- 
cisely formulated and the wording of them most care- 
fully scrutinized. In particular it must be precisely 
expressed whether the person released is only bound no 
longer to fight directly with arms against the State 
which releases him, in the present war, whether he is 
justified in rendering services to his own country in 
other positions or in the colonies, etc., or whether all 
and every kind of service is forbidden him. 

The question whether the parole given by an ofl&cer 
or a soldier is recognized as binding or not by his own 
State depends on whether the legislation or even the 
military instructions permit or forbid the giving of 
one's parole.^ In the first case his own State must not 
command him to do services the performance of which 
he has pledged himself not to undertake.* But personally 
the man released on parole is under all circumstances 
bound to observe it. He destroys his honour if he breaks 
his word, and is liable to pimishment if recaptured, even 
though he has been hindered by his own State from 
keeping it.* According to The Hague Regulations a 
Government can demand no services which are in 
conflict with a man's parole. 

^ In Austria the giving of one's parole whether by troops or officers 
is forbidden. 

* Monod, Allemands et Francais, Souvenirs de Campagne, p. 39: "I 
saw again at Tours some faces which I had met before Sedan ; among 
them were, alas ! officers who had sworn not to take up arms again, 
and who were preparing to violate their parole, encouraged by a 
Government in whom the sense of honour was as blunted as the sense 
of truth." 

• In the year 1870, 145 French officers, including three Generals, 
one Colonel, two Lieutenant-Colonels, three Commandants, ^thirty 
Captains (Bismarck's Despatch of December 14th, 1870), weregmlty 
of breaking their parole. The excuses, afterwards put forward, were 


As to 4. The exchange of prisoners in a single case Exchange of 
can take place between two belligerents without its ^^^°^' 
being necessary in every case to make circumstantial 
agreements. As regards the scope of the exchange 
and the forms in which it is to be completed the Com- 
manding Officers on both sides alone decide. Usually 
the exchange is man for man, in which case the different 
categories of military persons are taken into accoimt and 
certain ratios established as to what constitutes equiva- 

Transport of Prisoners. — Since no Army makes pri- Ronovai of 
soners in order to let them escape again afterwards, ^'*^°®"- 
measures must be taken for their transport in order to 
prevent attempts at escape. If one recalls that in the 
year 1870-71, no fewer than 11,160 officers and 333,885 
men were brought from France to Germany, and as a 
result many thousands often had to be guarded by a 
proportionately small company, one must admit that in 
such a position only the most zealous energy and ruth- 
less employment of all the means at one's disposal can 
avail, and although it is opposed to military sentiment 
to use weapons against the defenceless, none the less in 
such a case one has no other choice. The captive who 
seeks to free himself by flight does so at his peril and 
can complain of no violence which the custody of prison- 
ers directs in order to prevent behaviour of that kind. 
Apart from these apparently harsh measures against 
attempt at escape, the transport authorities must do 
everything they can to alleviate the lot of the sick and 
wounded prisoners, in particular they are to protect 
them against insults and ill-treatment from an excited 

generally quite unsound, though perhaps there may have been an 
element of doubt in some of the cases so positively condemned on the 
German side. The proceedings of the French Government who 
allowed these persons without scruple to take service again were 
subsequently energetically denounced by the National Assembly. 


3. Sieges and Bombardments 

Fair Game. War is wagcd Hot merely with the hostUe combatants 
but also with the inanimate military resources of the 
enemy. This includes not only the fortresses but also 
every town and every village which is an obstacle to 
military progress. All can be besieged and bombarded, 
stormed and destroyed, if they are defended by the 
enemy, and in some cases even if they are only occupied. 
There has always been a divergence of views, among 
Professors of International Law, as to the means which 
are permissible for waging war against these inanimate 
objects, and these views have frequently been in strong 
conflict with those of soldiers ; it is therefore necessary 
to go into this question more closely. 
We have to distinguish ': 

(a) Fortresses, strong places, and fortified places. 

\b) Open towns, villages, buildings, and the like, 

which, however, are occupied or used for military 


Fortresses and strong places are important centres of 
defence, not merely in a military sense, but also in a 
political and economic sense. They furnish !a principal 
resource to the enemy and can therefore he bombarded 
just like the hostile army itself. 
A preliminary notification of bombardment is just 

8!e°^^of as little to be required as in the case of a sudden assault. 

oMjs^oppor- jj^^ claims to the contrary put forward by some jurists 
are completely inconsistent with war and must be repudi- 
ated by soldiers ; the cases in which a notification has 
been voluntarily given do not prove its necessity. The 
besieger will have to consider for himself the question 
whether the very absence of notification may not be 
itself a factor of success, by means of surprise, and indeed 
whether notification will not mean a loss of precious 
. time. -If there is no danger of this then humanity no 
doubt demands such a notification. 


Since town and fortifications belong together and 
form an inseparable unity, and can seldom in a military 
sense, and never in an economic and political sense, 
be separated, the bombardment will not limit itself 
to the actual fortification, but it will and must extend 
over the whole town ; the reason for this lies in the fact 
that a restriction of the bombardment to the fortifica- 
tions is impracticable ; it would jeopardize the success 
of the operation, and would quite unjustifiably protect 
the defenders who are not necessarily quartered in the 

But this does not preclude the exemption by the |^»**^« 
besieger of certain sections and buildings of the fortress *** 
or town from bombardment, such as churches, schools, 
libraries, museums, and the like, so far as this is possible. 

But of course it is assmned that buildings seeking 
this protection will be distinguishable and that they 
are not put to defensive uses. Should this happen, 
then every hmnanitarian consideration must give way. 
The utterances of French writers about the bombard- 
ments of Strassburg Cathedral in the year 1870, are 
therefore quite without justification, since it only hap- 
pened after an observatory for ofl&cers of artillery had 
been erected on the tower. 

The only exemption from bombardment recognized 
by international law, through the medium of the Geneva 
Convention, concerns hospitals and convalescent estab- 
lishments. Their extension is left to the discretion of 
the besieger. 

As regards the civil population of a fortified place the a Bombard- 
rule is : All the inhabitants, whether natives or foreign- S^^^ of 
ers, whether permanent or temporary residents, are ^•'^^"^ 
to be treated alike. 

No exception need be made in regard to the diploma- 
tists of neutral States who happen to be in the town ; 



if before or during the investment by the besieger 
their attention is drawn to the fate to which they 
expose themselves by remaining, and if days of grace in 
which to leave are afforded them, that simply rests on 
the courtesy of the besieger. No such duty is incum- 
bent upon him in international law. Also permission 
to send out couriers with diplomatic despatches depends 
entirely upon the discretion of the besieger. In any 
case it will always depend on whether the necessary 
security against misuse is provided.* 
A^ ttmdy If the commandant of a fortress wishes to strengthen 
^^ its defensive capacity by expelling a portion of the popu- 
lation such as women, children, old people, wounded, 
etc., then he must take these steps in good time, i,e,, 
before the investment begins. If the investment is 
completed, no claim to the free passage of these classes 
can be made good. All juristic demands to the contrary 
are as a matter of principle to be repudiated, as being 
in fundamental conflict with the principles of war. 
The very presence of such persons may accelerate the 
surrender of the place in certain circumstances, and it 
would therefore be foolish of a besieger to renounce 
volimtarily this advantage.* 

* To a petition of the diplomatists shut up in Paris to be allowed 
to send a courier at least once a week, Bismarck answered in a docu- 
ment of September 27th, 1870, as follows : " The authorization of 
exchange of correspondence in the case of a fortress is not generally 
one of &e usages of war ; and although we would authorize willingly 
the forwarding of open letters from diplomatic agents, in so far aa 
their contents be not inconvenient from a military point of view, I 
cannot recognize as well founded the opinion of those who should 
consider the interior of the fortifications of Paris as a suitable centre 
for diplomatic relations." 

'"In the year 1870 the greatest mildness was practised on the 
German side towards the French fortresses. At the beginning of the 
siege of Strassburg it was announced to the French Commander that 
free passage was granted to the women, the children, and the sick, 
a favour which General Uhrich rejected, and the offer of which he 
very wisely did not make known to the population. And when later 
three delegates of the Swiss Federal Council sought permission in 


Once the surrender of a fortress is accomplished, then, 
by the usages of war to-day, any further destruction, 
annihilation, incendiarism, and the like, are completely 
excluded. The only further injuries that are permitted 
are those demanded or necessitated by the object of 
the war, e.g,, destruction of fortifications, removal of 
particular buildings, or in some circumstances of com- 
plete quarters, rectification of the foreground and so on. 

A prohibition by international law of the bombard- " undefend 
ment of open towns and villages which are not occupied 
by the enemy, or defended, was, indeed, put into words 
by The Hague Regulations, but appears superfluous, 
since modem miUtary history knows of hardly any such 

But the matter is different where open towns are 
occupied by the enemy or are defended. In this case, 
naturally all the rules stated above as to fortified places 
hold good, and the simple rules of tactics dictate that 
fire should be directed not merely against the bounds of 
the place, so that the space behind the enemy's firing line 
and any reserves that may be there shall not escape. A 
bombardment is indeed justified, and unconditionally 
dictated by military consideration, if the occupation of 
the village is not with a view to its defence but only for 

accordance with the resolution of the Conference at Olten, of Sep- 
tember 7th, to carry food to the civil population in Strassburg and 
to conduct non-combatants out of the town over the frontier, both 
requests were wiUingly granted by the besieger and four thousand 
inhalntants left the fortress as a result of this permission. Lastly, 
the besiegers of Belfort granted to the women, children, aged, and 
sick, free passage to Switzerland, not indeed immediately at the 
moment chosen by the commander Denfert, but indeed soon after " 
(Dahn, I, p. 89) . Two days after the bombardment of Bitsch had 
b^^n (September i ith) the townsfolk begged for free passage out 
of the town. This was, indeed, officially refused ; but, none the less, 
by the indulgence of the besieger, it was effected by a great number 
of townspeople. Something l&e one-half of the 2,700 souls of the 
civil popula^on, including &e richest and most respectable, left the 
town {Irle, die Festung Bitsch, Beitr&ge Mur Under und V^lherkunde 
von EUasS'Lothringeny 



the passage of troops, or to screen an approach or 
retreat, or to prepare or cover a tactical movement, op 
to take up supplies, etc. The only criterion is the value 
which the place possesses for the enemy in the existing 

Regarding it from this point of view, the bombard- 
ment of Kehl by the French in 1870 was justified by 
military necessity, although the place bombarded was 
an open town and not directly defended. " Kehl 
offered the attacking force the opportimity of establish- 
ing itself in its buildings, and of bringing up and placing 
there its personnel and material, unseenby the defenders. 
It became a question of making Kehl inaccessible to the 
enemy and of depriving it of the characteristics which 
made its possession advantageous to the enemy. The 
aforesaid justification was not very evident." * 

Also the bombardment of the open town of Saar- 
briicken cannot from the military point of view be the 
subject of reproach against the French. On August 
2nd a Company of the Fusilier Regiment No. 40 had 
actually occupied the railway station and several others 
had taken up a position in the town. It was against 
these troops that the fire of the French was primarily 
directed. If havoc was spread in the town, that could 
scarcely be avoided. In the night of August 3rd to 4th, 
the fire of the French batteries was again directed on 
the railway station in order to prevent the despatch of 
troops and material. Against this proceeding also no 
objection can be made, since the movement of trains 
had actually taken place. 

If, therefore, on the German side* energetic protest 
were made in both cases, and the bombardment of Kehl 
and Saarbriicken were declared a violation of interna- 
tional law, this only proves that in 1870 a proper com- 

^ Haxtmann, Krit. Versuche, II, p. 83. 
* Staatsangeiger, August 26th, 1870. 


prehension of questions of the laws of war of this kind 
was not always to be found even in the highest military 
and official circles. But still less was this the case on 
the French side as is clear from the protests against the 
German bombardment of Dijon, Chateaudun, Bazeilles, 
and other places, the military justij&cation for which is 
still clearer and incontestable.* 



Cunning in war has been permissible from the earliest stratagems, 
times, and was esteemed all the more as it furthered the 
object of war without entailing the loss of men. Sur- 
prises, laying of ambushes, feigned attacks and retreats, 
feigned flight, pretence of inactivity, spreading of false 
news as to one's strength and dispositions, use of the 
enemy's parole — all this was permitted and prevalent 
ever since war begun, and so it is to-day.* 

^ Considering the many unintelligible things written on the French 
tide about this, the opinion of an objective critic is doubly valuable. 
Monod, p. 55, op. cii., says : " I have seen Bazeilles burning ; I have 
informed myself with the greatest care as to how things happened. I 
have questioned French soldiers. Bavarian soldiers, and Bavarian in- 
habitants present at this terrible drama ; I am able to see in it only 
one of the frightful, but inevitable, consequences of the war." As to 
the treatment of Chateaudun, stigmatized generally on the French side 
as barbarous, the author writes (p. 56) : " The inhabitants of Chateau- 
dun, regularly organized as part of the National Guard, aided by the 
franctireurs of Paris, do not defend themselves by preparing ambushes 
but by fighting as soldiers. Chateaudun is bombarded ; nothing could 
be more legitimate, since the inhabitants made a fortress of it ; but 
once they got the upper hand the Bavarians set fire to more than one 
hundred houses." The picture of outrages by Germans which follows 
may be countered by what the author writes in another place about 
the French soldiers : " The frightful scenes at the taking of Paris by 
our troops at the end of May, 1871, may enable us to understand 
what violences soldiers allow themselves to be drawn into, when both 
excited and exhausted by the conflict." 

* " One makes use in war of the skin of the lion or the fox indif- The «popb- 
ferently. Cunning often succeeds where force would fail ; it is ^§^ji 
therefore absolutely necessary to make use of both ; sometimes force ^^^ Gxwt, 


yjjjj/" As to the limits between recognized stratagems and 
tricto"? those forms of cunning which are reprehensible, con- 
temporary opinion, national culture, the practical needs 
of the moment, and the changing military situation, are 
so influential that it is prima facie proportionately 
difficult to draw any recognized limit, as difficult as 
between criminal selfishness and taking a justifiable 
advantage. Some forms of artifice are, however, 
under all circumstances irreconcilable with honourable 
fighting, especially all those which take the form of 
• faithlessness, fraud, and breach of one's word. Among 
these are breach of a safe-conduct ; of a free retirement ; 
or of an armistice, in order to gain by a surprise attack 
an advantage over the enemy ; feigned surrender in order 
±0 kill the enemy who then approach unsuspiciously ; 
misuse of a flag of truce, or of the Red Cross, in order 
to secure one's approach, or in case of attack, deliberate 
violation of a solemnly concluded obligation, e.g., of a 
war treaty ; incitement to crime, such as murder of 
the enemy's leaders, incendiarism, robbery, and the like. 
This kind of outrage was an offence against the law of 
nations even in the earliest times. The natural con- 
science of mankind whose spirit is chivalrously alive in 
the armies of all civilized States, has branded it as an 
outrage upon human right, and enemies who in such a 
public manner violate the laws of honour and justice 
have been regarded as no longer on an equality.* 

can be countered by force, while on the other hand force has often to 
yield to cunning." — ^Frederick the Great, in his General Principles of 
War, Art. xi. 

* Also the pretence of false facts, as, for example, practised by 
Murat on November isth, 1805, against Prince Auersperg, in order 
to get possession of the passage of the Danube at Florisdorf ; the 
like stratagem which a few days later Bagration practised against 
Murat at Schongraben ; the deceptions under cover of their word of 
honour practised by the French Generals against the Prussian leaders 
in 1806 at Prenzlau ; these are stratagems which an officer in the 
field would scarcely dare to employ to-day without being branded by 
the public opinion of Europe. 


The views of military authorities about methods of of f»18» 
this kind, as also of those which are on the border-line, "°^**™- 
frequently differ from the views held by notable 
jurists. So also the putting on of enemy's uniforms, 
the employment of enemy or neutral flags and marks, 
with the object of deception are as a rule declared 
permissible by the theory of the laws of war,* while mili- 
tary writers* have expressed themselves imanimously 
against them. The Hague Conference has adopted the 
latter view in forbidding the employment of enemy's 
uniforms and military marks equally with the misuse of 
flags of truce and of the Red Cross.* •^ 

Bribery of the enemy's subjects with the object of nw 
obtaining military advantages, acceptance of offers of S*^«" 
treachery, reception of deserters, utilization of the dis- ^^^ 
contented elements in the population, support of pre- 
tenders and the like, are permissible, indeed international 
law is in no way opposed* to the exploitation of the 

1 In the most recent times a change of opinion seems to have 
taken place. Bluntschli in his time holds (sec. 565) the use of the 
distinguishing marks of the enemy's army — uniforms, standards, 
and flags — ^with the object of deception, to be a doubtful practice, 
and thinks that this kind of deception should not extend beyond the 
preparations for battle. " In battle the opponents should engage one 
another openly, and should not fall on an enemy from behind 
in the mask of a friend and brother in arms." The Manual of the 
Institute of International Law goes further. It says in 8 (^ and d) : 
" II est interdit d'attaquer Tennemi en dissimulant les signes dis- 
tinctifs de la force arm6e ; d'user inddment du pavilion national, 
des insignes militaires ou de Tuniforme de Tennemi" The Declara- 
tion of Brussels altered the original proposition, " L'emploi da 
pavilion national ou des insignes miUtaires et de Tuniforme de 
f'ennemi est interdit," into " L'abus du pavilion natiomJ." 

* Cp. Boguslawski, Der kMne Krieg, 1881, p. 26, 27. 

*[The Hague Regulations, Art. 23, to which Germany was a 
party, declares it is prohibited : "To make improper u.«e of a flag 
of truce, the national flag, or miUtary ensigns and the enemy's 
uniform, as well as the distinctive badges of the Geneva Convention." 
— J.H.M.] 

* [This represents the German War-Book in its most disagreeable 
light, and is casuistry of the worst kind. There are certain things on 


Andmardff crimes of third parties (assassination, incendiarism, 
vk^j^t^^ robbery, and the like) to the prejudice of the enemy. 

Considerations of chivalry, generosity, and honour 
The may denounce in such cases a hasty and unsparing ex- 

SjJLueSt!*" ploitation of such advantages as indecent and dis- 
J°^^**5 honourable, but law which is less touchy allows it.* 

^d2d»^ " ^^ ^S^y ^^^ inherently immoral aspect of such 
methods cannot affect the recognition of their lawful- 
ness. The necessary aim of war gives the belligerent 
the right and imposes upon him, according to circum- 
stances, the duty not to let slip the important, it may be 
the decisive, advantages to be gained by such means."* 

which International Law is silent because it will not admit the possi- 
biUty of their existence. As Professor Holland well puts it {The Laws 
of War on Land, p. 6i), in reference to the subject of reprisals the 
Hague Conference '' declined to seem to add to the authority of a 
practice so repul^ve " by legislating on the subject. And so with 
assassination. It can never be presumed from The Hague or oth» 
international agreements that what is not expressly forbidden is 
thereby approved.] 

* [Professor] Bluntschli, Volherruht, p. 316. 

• [Professor] LUder, Handbuch des Vo'lkerrechts, p. 90. 



The generally accepted principle that in war one . . 
should do more harm to one's enemy than the object of / 
the war unconditionally requires, has led to treating 
the wounded and sick combatants as being no longer 
enemies, but merely sick men who are to be taken care 
of and as much as possible protected from the tragic 
results of wounds and illness. Although endeavours to 
protect the wounded soldiers from arbitrary slaughter, 
mutilation, ill-treatment, or other brutahties go back 
to the oldest times, yet the credit of systematizing these 
endeavours belongs to the nineteenth century, and this 
sjrstem was raised to the level of a principle of inter- 
national law by the Geneva Convention of 1864. 

With the elevation of the Geneva Agreements to the The saoo- 
level of laws binding peoples and armies, the question of c^^iom 
the treatment of wounded and sick combatants, as well ^•^****°- 
as that of the persons devoted to the healing and care of 
them, is separated from the usages of war. Moreover, 
any discussion of the form of this international law must 
be regarded from the military point of view as aimless 
and unprofitable. The soldier may still be convinced that 
some of the Articles are capable of improvement, that 
others need supplementing, and that yet others should 
be suppressed, but he has not the right to deviate from . 
the stipulations ; it is his duty to contribute as far as he 
can to the observance of the whole code. 


J*« ^ No notice is taken in the Geneva Convention of the 
the jBatue questioii of the protection of fallen or wounded com- 
batants from the front, from the rabble usually known 
as " The Hyenas of the battlefield," who are accustomed 
to rob, ill-treat, or slay soldiers Ijring defenceless on the 
field of battle. This is a matter left to the initiative of 
the troops. Persons of this kind, whether they be 
soldiers or not, are undoubtedly to be dealt with in the 
sternest possible manner. 



Hostile armies are in frequent intercourse with one Flags d 
another. This takes place so long as it is practised ^"*^ 
openly, that is to say, with the permission of the 
commanders on both sides, by means of bearers of 
flags of truce. In this class are included those who 
have to conduct the official intercourse between the 
belligerent armies or divisions thereof, and who appear 
as authorized envoys of one army to the other^ in order 
to conduct negotiations and to transmit communica- 
tions. As to the treatment of bearers of flags of truce 
there exist regular usages of war, an intimate acquaint- 
ance with which is of the highest practical importance. 
This knowledge is not merely indispensable for the 
higher officers, but also for all inferior officers, and to a 
certain extent for the private in the ranks. 

Since a certain degree of intercourse between the two 
belligerents is unavoidable, and indeed desirable, the 
assurance of this intercourse is in the interests of both 
parties ; it has held good as a custom from the earUest 
times, and even among imcivilized people, whereby 
these envoys and their assistants (trumpeter, drummer, 
interpreter, and orderly) are to be regarded as inviolable ; 
a custom which proceeds on the presumption that these 
persons, although drawn from the rai^s of the com- 
batants, are no longer, during the performance of these 
duties, to be regarded as active belligerents. They 
must, therefore, neither be shot nor captured ; on the 



contrary, everything must be done to assure the per- 
formance of their task and to permit their return on its 
But it is a fundamental condition of this procedure 

1. That the envoy be quite distinguishable as such by 

means of universally recognized and well-known 
marks; distinguishable both by sight and by 
hearing (flags of truce, white flags, or, if need be, 
white pocket-handkerchiefs) and signals (horns or 

2. That the envoy behave peaceably, and 

3. That he does not abuse his position in order to commit 

any unlawful act. 

Of course any contravention of the last two condi- 
tions puts an end to his inviolability ; it may justify his 
immediate capture, and, in extreme cases (espionage, 
hatching of plots), his condemnation by military law. 
Should the envoy abuse his mission for purposes of 
observation, whereby the army he is visiting is imperilled, 
then also he may be detained, but not longer than is 
necessary. In all cases of this kind it is recommended 
that prompt and detailed information be furnished 
to the head of the other army. 

It is the right of every army : 

1. To accept or to refuse such envoys. An envoy who 

is not received must immediately rejoin his own 
army; he must not, of course, be shot at on his 

2. To declare that it will not during a fixed period 

entertain any envoys. Should any appear in spite 

of this declaration; they cannot claim to be 

3. To determine in what forms and under what pre- 

cautions envoys shall be received. The envoys 
have to submit to any commands even though 
entailing personal inconvenience such as blind- 
folding or going out of their way on coming or 
returning, and such like. 


The observance of certain forms in the reception of nie 
envoys is of the greatest importance, as a parley may 12^^** **' 
serve as a cloak for obtaining information or for the "^^^ 
temporary interruption of hostilities and the Uke. Such 
a danger is particularly likely to occur if the combatants 
have been facing one another, as in the case of a war of 
positions, for a long time without any particular result. 
These forms are also important because their non- 
observance, as experience shows, gives rise to recrimina- 
tion and charges of violation of the usages of war. The 
following may, therefore, be put forward as the chief 
rules for the behaviour of an envoy and as the forms to 
be observed in his reception. 

I. The envoy (who is usually selected as being a man tim Envoy, 
skilled in languages and the rules, and is mounted 
on horseback) makes for the enemy's outpost or 
their nearest detachment, furnished with the neces- 
sary authorization, in the company of a trumpeter 
and a flag-bearer on horseback. If the distance 
between the two outposts of the respective lines is 
very small, then the envoy may go on foot in the 
company of a bugler or a drummer. 

a. When he is near enough to the enemy's outposts or l Ot 
their lines to be seen and heard, he has the trumpet ■pp"*^ 
or bugle blown and the white flag unfurled by the 
bearer. The bearer will seek to attract the atten- 
tion of the enemy's outposts or detachments whom 
he has approached, by waving the flag to and fro. 

From this moment the envoy and his company are 
inviolable, in virtue of a general usage of war. The 
appearance of a flag of truce in the middle of a 
fight, however, binds no one to cease fire. Only 
the envoy and his companions are not to be shot at. 

3. The envoy now advances with his escort at a slow tim ehai- 
walk to the nearest posted officer. He must obey if^^j^^t* 
the challenge of the enemy's outposts and patrol. 


He dlf 

Let hii Yes 
be Yea, and 
hit Nay, Nay 

The duty of 
his Interio' 


4. Since it is not befitting to receive an envoy at just 

that place which he prefers, he has to be ready to 
be referred to a particular place of admission. He 
must keep close to the way prescribed for him. 
It is advisable for the enemy whenever this is 
possible to give the envoy an escort on the way. 

5. On arriving at the place indicated, the envoy dis- 

mounts along with his attendants; leaves them at 
a moderate distance behind him, and proceeds on 
foot to the officer on duty, or highest in command, 
at that place, in order to make his wishes known. 

6. Intercourse with the enemy's officer must be courte* 
ously conducted. The envoy has always to bear 
in mind the discharge of his mission, to study the 
greatest circumspection in his conversations, 
neither to attempt to sound the enemy or to allow 
himself to be sounded. . . . The best thing is to 
refuse to enter into any conversation on military 
matters beforehand. 

7. For less important affairs the officer at the place of 
admission will possess the necessary' instructions, 
in order either to discharge them himself, or to 
promise their discharge in a fixed period. But in 
most cases the decision of a superior will have to 
be taken; in this case the envoy has to wait until 
the latter arrives. 

8. If the envoy has a commission to deal personally 
with the Commander-in-Chief or a high officer, or 
if the officer on duty at the place of admission con- 
siders it desirable for any reason to send the envoy 
back, then, if it be necessary, the eyes of the envoy 
may be blindfolded; to take away his weapons is 
hardly necessary. If the officer at the place of 
admission is in any doubt what attitude to adopt 
towards the requests of the envoy, he will for the 
time being detain him at his post, and send an 
intimation to his immediate superior in case the 
affair appears to him of particular importance, and 
at the same time to the particular officer to whom 
the envoy is or should be sent. 


9. If an envoy will not wait, he may be permitted, Tiwimpa^ 
according to circumstances, to return to his own ***»*^^'<^' 
army if the observation made by him or any com- 
munications received can no longer do any harm. 

From the foregoing it follows that intercourse with 
the envojrs of an enemy presupposes detailed instruc- 
tions and a certain intelligence on the part of the officers 
and men if it is to proceed peaceably. But before all 
things it must be made clear to the men that the inten- 
tional wounding or killing of an envoy is a serious viola- 
tion of international law, and that even an unfortunate 
accident which leads to such a violation may have the 
most disagreeable consequences. 

A despatch of Bismarck's of January 9th, 1871, Tiie Freoch 
demonstrates by express mention of their names, that ****^ 
twenty-one German envoys were shot by French 
soldiers while engaged on their mission. Ignorance and 
defective teaching of the troops may have been the 
principal reason for this none too excusable behaviour. 
In many cases transgressions on the part of the rawer 
elements of the army may have occurred, as has been 
many times offered as an excuse in higher quarters. 
Nevertheless, this state of affairs makes clear the 
necessity of detailed instruction and a sharp super- 
visioi^ of the troops by the officers. 



TiidSooat. Scouting resolves itself into a question of getting 
possession of important information about the position, 
strength, plans, etc., of the enemy, and thereby promot- 
ing the success of one's own side. The existence of 
scouting has been closely bound up with warfare from 
the earliest times ; it is to be regarded as an indispensable 
means of warfare and consequently is imdoubtedly 
permissible. If the scouting takes place pubUcly by 

• recognizable combatants then it is a perfectly regular 
form of activity, against which the enemy can only use 
the regular means of defence, that is to say, killing in 
battle, and capture. If the scouting takes the form of 

Th«spy ' secret or surreptitious methods, then it is espionage, 
Slrift ****** ^^^ ^ liable to particularly severe and ruthless measures 
by way of precaution and exemplary punishment— 
usually death by shooting or hanging. This severe 
punishment is not inflicted on account of dishonourable 
disposition on the part of the spy — ^there need exist 
nothing of the kind, and the motive for the espionage 

• may arise from the highest patriotism and sentiment of 
military duty quite as often as from avarice and dis- 
honourable cupidity* — but principally on account of 

^ To judge espionage with discrimination according to motives 
does not seem to be feasible in war. " Whether it be a patriot who 
devotes himself, or a wretch who sells himself, the danger they run 
at the hands of the enemy will be the same. One will respect the first 
and despise the second, but one will shoot both." — Quelle I, 126. 
This principle is very ancient. As early as 1780 a North-American 
court-martial condemned Major Andr^, an Englishman, to death 
by hanging, and in vain did the English Generals intercede for him, 
in vain did he* plead himself, that he be shot as a soldier. 



the particular danger which lies in such secret methods. 
It is as it were a question oj self-defence. 

Having regard to this severe punishment introduced 
by the usages of war, it is necessary to define tl\p con- 
ception of espionage and of spies as precisely as possible. 

A spy was defined by the German army staff in 1870 what b a 
as one " who seeks to discover by clandestine methods, ^^ 
in order to favour the enemy, the position of troops, 
camps, etc. ; on the other hand enemies who are soldiers 
are only to be regarded as spies if they have violated 
the rules of military usages, by denial or concealment 
of their miUtary character." 

The Brussels Declaration of 1874 defines th^ con- 
ception as follows : " By a spy is to be understood he 
who clandestinely or by illicit pretences enters or 
attempts to enter into places in the possession of the 
enemy with the intention of obtaining information to 
be brought to the knowledge of the other side." The 
Hague Conference puts it in the same way. 

The emphasis in both declarations is to be laid on the of the 
idea of " secrecy " or " deception." If regular com- 1^^^ 
batants make enquiries in this fashion, for example in 
disguise, then they also come under the category of 
spies, and can lawfully be treated as such. Whether 
the espionage was successful or not makes no difference. 
The motive which has prompted the spy to accept his 
commission, whether noble or ignoble, is, as we have 
already said, indifferent ; likewise, whether he has acted 
on his own impulse or under a commission from his own 
State or army. The military jurisdiction in this matter 
cuts across the territorial principle and that of allegi- 
ance, in that it makes no difference whether the spy 
is the subject of the belligerent country or of another 

It is desirable that the heavy penalty which the spy 
incurs should be the subject not of mere suspicion but of 


acttial proof of existence of the offence, by means of a 
trial, however summary (if the swift course of the war 
permits), and therefore the death penalty will not be 
enforced without being preceded by a judgment. 
Participation in espionage, favouring it, harbouring 
Modiwii. a ^y, are equally punishable with espionage itsell 



The difference between these two is this — ^the first class The- 
are untrue to the colours, their intention being to and the 
withdraw altogether from the conflict, to leave the seat fiS?*^ 
of war, and, it may be, to escape into a country outside 
it ; but the second class go over to the enemy in order 
to fight in his ranks against their former comrades. 
According to the general usages of war, deserters and 
renegades, if they are caught, are to be subjected to 
martial law and may be punished with death. 

Although some exponents of the laws of war claim 
that deserters and renegades should be handed back to 
one's opponent, and on the other hand exactly the 
opposite is insisted on by others, namely, the obligation 
to accept them — all we can say is that a soldier cannot 
admit any such obligation. 

Deserters and renegades weaken the power of the gut both 
enemy, and therefore to hand them over is not in the ^^ 
interest of the opposite party, and as for the right to 
accept them or reject them, that is a matter for one's 
own decision. 




'Fooovran." In the train of an army it is usual to find, tempo- 
rarily or permanently, a mass of civilians who are 
indispensable to the satisfaction of the wants of officers 
and soldiers or to the connection of the army with the 
native population. To this category belong all kinds of 
contractors, carriers of charitable gifts, artists, and the 
like, and, above aU, newspaper correspondents whether 
native or foreign. If they fall into the hands of the 
enemy, they have the right, should their detention 
appear desirable, to be treated as prisoners of war, 
assuming that they are in possession of an adequate 

For all these individuals, therefore, the possession 
of a pass issued by the military authorities concerned, 
in accordance with the forms required by international 
intercourse, is an indispensable necessity, in order that 
in the case of a brush with the enemy, or of their being 
taken captive, they may be recognized as occupjdng 
a passive position and may not be treated as spies.* 

In the grant of these authorizations the utmost cir- 
cumspection should be shown by the military authori- 

^ The want of an adequate authorization led in 1874 to the shoot- 
ing of the Prussian newspaper correspondent Captain Schmidt by 
the Carlists, which raised a great outcry. Schmidt was armed 
with a revolver, with maps of the seat of war, and also with plans 
and sketches of the Carlists' positions, as against which he had only 
an ordinary German passport as a Prussian Captain and was seized 
within the Carlists' outpost, and since he could not defend himself, 
verbally, on account of his ignorance of the Spanish language, he 
was.convicted as a spy by court-martial and diot. 



ties ; this privilege should only be extended to those 
whose position, character, and intentions are fully 
known, or for whom trustworthy persons will act as 

This circumspection must be observed most scrupu- pewar 
lously in the case of newspaper correspondents whether entvwi 
native or foreign. Since the component parts of aS'^S^ce 
modem army are drawn from all grades of the population, *■ ^^'^^^^ 
the intervention of the Press for the purpose of intellec- 
tual intercourse between the army and the population 
at home can no longer be dispensed with. The army 
also derives great advantages from this intellectual 
intercourse ; it has had to thank the stimulus of the 
Press in recent campaigns for an unbroken chain of 
benefits, quite apart from the fact that news of the war 
in the newspapers is a necessity for every soldier. The 
importance of* this intervention, and on the other hand 
the dangers and disadvantages which may arise from 
its misuse, make it obviously necessary that the military 
authorities should control the whole of the Press when 
in the field. In what follows \^e shall briefly indicate 
the chief rules which are customary, in the modem 
usages of war, as regards giving permission to news- 
paper correspondents. 

The first thing necessary in a war correspondent is a ^i*^5^. 
sense of honour; in other words, he must be trustworthy, pondent 
Only a man who is known to be absolutely trustworthy, 
or who can produce a most precise official certificate 
or references from miimpeachable persons, can be 
granted permission to attach himself to headquarters. 

An honourable correspondent will be anxious to 
adhere closely to the duties heowes to his paper on the 
one hand, and the demands of the army whose hospitality 
he enjoys on the other. To do both is not always easy, 
and in many cases tact and refinement on the part of the 




correspondent can alone indicate the right course ; a 
censorship is proved by experience to be of little use ; 
the certificates and recommendations required must 
therefore be expUcit as to the possession of these quali- 
ties by the applicant; and according as he possesses 
them or not his personal position at headquarters and 
the degree of support extended to him in the discharge 
of his duties will be decided. 

It is therefore undoubtedly in the interest of the army 
as of the Press, that the latter shall only despatch such 
representatives as really are equal to the high demands 
which the profession of correspondent requires. 
Tha The correspondent admitted on the strength of satis- 

S^SwJr factory pledges has therefore to promise on his word of 
honour to abide by the following obligations : 

1. To spread no news as to the disposition, numberSi 
or movements of troops, and, moreover, the inten- 
tions and plans of the staff, unless he has 
permission to publish them. (This concerns 
principally correspondents of foreign newspapers 
since one's own newspapers are already subject to 
a prohibition of this kind ' by the Imperial Press 
Law of April 7th, 1874.) 

2. To report himself on arrival at the headquarters of a 
division immediately to the commanding officer, and 
to ask his permission to stay, and to remove himself 
immediately and without making difficulties if the 
o.c. deems his presence inexpedient on military 

3. To carry with him always, and to produce on 
demand, his authorization (certificate, armlet, 
photograph) and his pass for horses, transport, 
and servants. 

4. To take care that his correspondence and articles 
are submitted at headquarters. 

5. To carry out all instructions of the officers at head- 
quarters who supervise the press. 


Contraventions of the orders from headquarters, 
indiscretions, and tactlessness, are punished in less 
serious cases with a caution, in grave cases by expulsion ; 
where the behaviour of the correspondent or his corre- 
spondence has not amounted to a military offence, and 
is therefore not punishable by martial law. 

A journalist who has been expelled not only loses 
his privileges but also his passive character ; and if he 
disregards his exclusion he will be held responsible. 

Foreign journalists are subject to the same obli- 
gations ; they must expressly recognize their authority 
and in case of punishment cannot claim any personal 

Journalists who accompany the army without the 
permission of the stalS, and whose reports therefore can- 
not be subject to military control, are to be proceeded 
against with inexorable severity. They are to be 
expelled ruthlessly as dangerous, since they only get 
in the way of the troops and devour their subsistence, 
and may under the mask of friendship do harm to the 

^ In the Egyptian Campaign in 1882 the English War Office 
published the following regulations for newspaper correspondents. 
[The translator does not ^ink it necessary to reproduce these.] 



How to tdi« Those persons and objects who in war are to be 
SSS?"^ treated as inviolable must be recognizable by some 
external mark. Such is the so-called Geneva Cross 
(a red cross on a white ground) introduced by interna- 
tional agreement.^ 

Attention is to be attracted in the case of persons by 
armlets ; in the case of buildings by flags ; in the case 
of waggons and other objects by a corresponding 
paint mark. 

If the mark is to receive adequate respect it is essen- 
tial : 

1. That it should be clearly visible and recognizable. 

2. That it should only be worn by such persons or 

attached to such objects as can lawfully claim it. 

As to I. Banners and flags must be sufficiently 
large to be both distinguishable and recognizable at a 
far distance ; they are to be so attached that they will 
not be masked by any national flag that may be near 
them, otherwise unintentional violations will be un- 

As to 2. Abuse will result in the protective mark 
being no longer respected, and a further result would 
be to render illusory, and to endanger, the whole of 
the Geneva Convention. Measures must therefore be 

1 In Turkey, in place of the Red Cross a red crescent was intro- 
duced, and was correspondingly respected by the Russians in the 
campaign of 1877. Japan, on the contrary, has waived its original 
objection to the cross. 



taken to prevent such abuses and to require every 
member of the army to draw attention to anyone who 
wears these marks without being entitled to do so.* 

Regulations of international law to prevent and 
punish misuse of the Red Cross do not exist.* 

1 That in the war of 1870 the Red Cross was frequently abused on 
the French side is well known, and has been the subject of docu- 
mentary proof. The escape of Bourbaki from Metz, under cover 
of the misuse of the Geneva Convention, proves that even in the 
highest circles people were not clear as to the binding obligation of 
International Regulations, and disregarded them in the most frivol- 
ous manner. 

* [But the English legislature has, by the Geneva Convention Act, 
191 1 (i and 2 Geo. V, c. 20) made it a statutory offence, punishable 
on summary conviction by a fine not exceeding ;fio, to use the 
heraldic emblem of the Red Cross or the words " Red Cross '* for 
any purpose whatsoever, if the person so using it has not the 
authority of the Army Council for doing so. — J.H.M.] 



niat Faith In the following pages we have only to do with war 
^tf^tiSw treaties in the narrower sense, that is such as are 
Enemy. concluded during the war itself and have as their object 
either the regulation of certain relations during the 
period of the war, or only an isolated and temporary 
measure. It is a principle of all such treaties that : 
Etiam hosti fides servanda. Every agreement is to 
be strictly observed by both sides in the spirit and in 
the letter. Should this rule not be observed by one 
side then the other has the right to regard the treaty 
as denounced. 

How a treaty is to be concluded depends on the 
discretion of those who conclude it. Drafts or models 
of treaties do not exist. 

A. — Treatiesvf Exchange 

gj^^ ^ These have for their object the mutual discharge or 
exchange of prisoners of war. Whether the opponent 
will agree to an offer of this kind or not^ depends 
entirely upon himself. 

The usual stipulation is : An equal number on both 
sides. That is only another way of saying that a 
surplus of prisoners on the one side need not be handed 

The restitution of a greater number of common 
soldiers against officers can be stipulated ; in that case, 
the relative value of different grades must be precisely 
fixed in the treaty* 



B. — Treaties of Capitulation 

The object of these is the surrender of fortresses or capita- 
strong places as also of troops in the open field. Here SS'Si^t 
again there can be no talk of a generally accepted model. JJ^S ."***' 
TTie usages of war have, however, displayed some rules 
for capitulations, the observance of which is to be 
reconmiended : 

1. Before any capitulation is concluded, the authority 

of the Commander who concludes it should be 
formally and unequivocally authenticated. How 
necessary a precaution of this kind is, is shown by 
the capitulations of Rapp .at Danzig, and of 
Gouvion St. Cyr at Dresden, in 18 13, which were 
actually annulled by the refusal of the General Staff 
of the Allies to ratify them. At the trial of Bazaine 
the indictment by General Riviere denied the title 
of the Marshal to conclude a caipitulation. 


2. If one of the parties to the treaty makes it a 

condition that the confirmation of the monarch, or 
the Commander-in-Chief, or even the national 
assembly is to be obtained, then this circumstance 
must be made quite clear. Also care is to be taken 
that in the event of ratification being refused every 
advantage that might arise from an ambiguous 
proceeding on the part of one opponent, be made 

3. The chief effect of a capitulation is to prevent that 

portion of the enemy's force which capitulates 
from taking any part in the conflict during the 
rest of the war, or it may be for a fixed period. 
The fate of the capitulating troops or of the sur- 
rendered fortress differs in different cases.* In 

^ How difierent the conditions of capitulation may be the following 
examples will show : 

Sedan : (i) The French anny surrender as prisoners of war. (2) 
In consideration of the brave defence all Generals, Officers, and 
Officials occupjring the rank of Officers, will receive their freedom so 
soon as they give their word of honour in writing not to take up arms 
again until the end of the war, and not to behave in a manner pre- 


the Treaty of Capitulation every condition agreed 
upon both as to time and manner must be ex- 
pressed in precise and unequivocable words. 
Conditions which violate the military honour of 
those capitulated are not permissible according to 
modern views. Also, if the capitulation is an uncon- 
ditional one or, to use the old formula, is "at 

judicial to the interests of Germany. The officers and officials who 
accept these conditions are to keep their arms and their own personal 
effects. (3) All arms and all war material consisting of flags, eagles, 
cannons, munitions, etc., are to be surrendered and to be handed over 
by a French military commission to German commissioners. (4) The 
fortress of Sedan is to be immediately placed at the disposition (of 
the Germans) exactly as it stands. (5) The officers who have refused 
the obligation not to take up arms again, as well as the troops, shall 
be disarmed and organized according to their regimeiits or corps to 
go over in military fashion. The medical staff are without exception 
to remain behind to look after the wounded. 

Metz : The capitulation of Metz allowed the disarmed soldiers to 
keep their knapsacks, effects, and camp equipment, and allowed the 
officers who preferred to go into captivity, rather than give their 
word of honour, to take with them their swords, or sabres, and their 
personal property. 

Belfort : The garrison were to receive all the honours of war, to 
keep their arms, their transport, and their war material. Only the 
fortress material was to be surrendered. 

Bitsch (concluded after the settlement of peace) : (i) The garrison 
retires with all the honours of war, arms, banners, artillery, and 
field pieces. (2) As to siege material and munitions of war a double 
inventory is to be prepared. (3) In the same way an inventory is 
to be taken of administrative material. (4) The material referred to 
in Articles 2 and 3 is to be handed over to the Commandant of the 
German forces. (5) The archives of the fortress, with the exception 
of the Commandant's own register, are left behind. (6) The customs 
officers are to be disarmed and discharged to their own homes. (7) 
The canteen-keepers who wish to depart in the ordinary way receive 
from the local commandant a pass vis6d by the German local 
authorities. (8) Hie local Commandant remains after the departure 
of the troops at the disposal of the German higher authorities till the 
final settiement ; he binds himself on his word of honour not to leave 
the fortress. (9) The troops are transported with their horses and 
baggage by the railroad. (10) The baggage left behind in Bitsch by 
the officers of the ist and 5th Corps will be sent later to an appointed 
place in France, two non-commissioned officers remain to guard it 
and later to send it back under their supervision. 

Nisch (January loth, 1878) : [The translator has not thought it 
necessary to reproduce this.] 


discretion," the victor does not thereby, according 
to the modern laws of war, acquire a right of life 
and death over the persons capitulating. 

4. Obligations which are contrary to the laws of 

nations, such as, for example, to fight against 
one's own Fatherland during the continuation of 
the war, cannot be imposed upon the troops 
capitulating. Likewise, also, obligations such as 
are forbidden them by their own civil or military 
laws or terms of service, cannot be imposed. 

5. Since capitulations are treaties of war they cannot 

contain, for those contracting them, either rights or 
duties which extend beyond the period of the war, 
nor can they include dispositions as to matters of 
constitutional law sucn as, for example, a cession 
of territory. 

6. A violation of any of the obligations of the treaty of 

capitulation justifies an opponent in immediately 
renewing hostilities without further ceremony. 

The external indication of a desire to capitulate is the of thewute 
raising of a white flag. There exists no obligation to ^^ 
cease firing immediately on the appearance of this sign 
(or to cease hostilities) . The attainment of a particular 
important, possibly decisive, point, the utilization of a 
favourable moment, the suspicion of an illicit purpose 
in raising the white flag, the saving of time, and the like, 
may induce the commanding officer to disregard the 
sign imtil these reasons have disappeared. 

If, however, no such considerations exist, then human- 
ity imposes an immediate cessation of hostilities. 

c. — Safe-conducts 

The object of these is to secure persons or things oi safocon* 
from hostile treatment. The usages of war in this ****** 
matter furnish the following rules : 

I. Letters of safe-conduct, for persons, can only be given 
to such persons as are certain to behave peaceably 


and not to misuse them for hostile purposes; 
letters of safe-conduct for things are only to be 
granted under a guarantee of their not being 
employed for warlike purposes. 

2. The safe-conducts granted to persons are personal 
to them, i,e,, they are not available for others. 
They do not extend to their companions unless 
they are expressly mentioned. 

An exception is only to be made in the case of 
diplomatists of neutral States, in whose case their 
usual entourage is assumed to be included even 
though the members are not specifically named. 

3. The safe-conduct is revocable at any time; it can 
even be altogether withdrawn or not recognized by 
another superior, if the military situation has so 
altered that its use is attended with unfavourable 
consequences for the party which has granted it. 

4. A safe-conduct for things on the other hand is not 
confined to the person of the bearer. It is obvious 
that if the person of the bearer appears at all 
suspicious, the safe-conduct can be withdrawn. 
This can also happen in the case of an officer who 
does not belong to the authority which granted it. 
The officer concerned is in this case fully 
responsible for his proceedings, and should report 

D. — Treaties of Armistice 

?L. *s ^ ^y annistice is understood a temporary cessation of 
hostilities by agreement. It rests upon the voluntary 
agreement of both parties. The object is either the 
satisfaction of a temporary need such as carrying away 
the dead, collecting the wounded, ^d the Uke, or the 
preparation of a surrender or of negotiations for peace. 
A general armistice must accordingly be distinguished 
from a local or particular one. The general armistice 
extends to the whole seat of war, to the whole army, 
and to alUes; it is therefore a formal cessation of the 



war. A particular armistice on the contrary relates 
only to a part of the seat of war, to a single part of the 
opposing army. Thus the armistice of Poischwitz in 
the autumn of 1813 was a general armistice ; that of 
January 28th, 1871, between Germany and France, 
was a particular or local one, since the South-Eastem 
part of the theatre of war was not involved. 

The. right to conclude an armistice, whether general 
or particular, belongs only to a person in high command, 
i.e., the Conunander-in-Chief. Time to go and obtain 
the consent of the ruling powers may be wanting. 
However, if the object of the armistice is to begin 
negotiations for peace, it is obvious that this can only 
be determined by the highest authorities of the State. 

If an agreement is concluded, then both sides must 
observe its provisions strictly in the letter and the spirit. 
A breach of the obligations entered into on the one side 
can only lead to the immediate renewal of hostilities on 
the other side.* A notification is in this case only 
necessary if the circumstances admit of the consequent 
loss of time. If the breach of the armistice is the fault 
of individuals, then the party to whom they belong is 
not inunediately responsible and cannot be regarded as 
having broken faith. If, therefore, the behaviour of 
these individuals is not favoured or approved by their 
superiors, there is no ground for a resumption of hostili- 
ties. But the guilty persons ought, in such case, to be 
punished by the party concerned. 

Even though the other party does not approve the 
behaviour of the trespassers but is powerless to prevent 

* Thus, in August, 1813^ the numerous trespasses across the frontier 
on the part of French detachments and patrols led to the entry of 
the Siiesian army into the neutral territory and therewith to a pre- 
mature commencement of hostilities. Later inquiries show that these 
trespasses were committed without the orders of a superior and that, 
ther^ore, the French staff cannot be reproached with a breach of 
the compact ; but the behaviour of Bllicher was justified in the 
circumstsCnces and in any case was based upon good faith. 


soch trespasses, then the opponent is justified in regard- 
ing the armistice as at an end. In order to prevent 
unintentional violation both parties should notify the 
armistice as quickly as possible to all, or at any rate 
to the divisions concerned. Delay in the announcement 
of the armistice through negligence or bad faith lies, 
of course, at the door of him whose duty it was to an- 
nounce it. A violation due to the bad faith of an 
individual is to be sternly punished. 

No one can be compelled to give credit to a communi- 
cation from the enemy to the effect that an armistice 
has been concluded ; the teaching of military history 
is full of warnings against lightly crediting such 

^ We have here in mind not exclusively intentionally untrue com- 
munications, although these also, especially in the Napoleonic war, 
very frequently occur , very often the untrue communication is made 
in good faith. 

During the fight which took place at Chaffois on January 29th, 
1871, when the village was stormed, the cry of Armistice vras raised 
on the French side. A French officer of the General Staff communi- 
cated to the Commander of the 14th Division by the presentation of a 
written declaration the news of an armistice concluded at Versailles 
for the whole of France. The document presented, which was 
directed by the Commander-in-Chief of the French Army in the East, 
General Clinchant, to the Commander of the French Division engaged 
at Chaffois, ran as follows : 

" An armistice of twenty-one days has been signed on the 27th. 
I have this evening received the official news. Cease fire in conse- 
quence and inform the enemy, according to the forms followed in 
war, that the armistice exists and that you are charged to bring it 
to his knowledge. 

{Signed) Clinchant." 
Pontarlier, January, 29th, 1871. 

Of the conclusion of this armistice no one on the German side had 
any knowledge. None the less hostilities ceased for the time being, 
pending the decision of the higher authorities. Since on the enemy's 
side it was asserted that a portion of the French troops in Chafiois had 
been made prisoners after the news of the existence of the armistice 
was communicated, and the order to cease fire had been given, some 
thousand French prisoners were set free again in recognition of this 
possibility, and the arms which had been originally kept back from 
them were later restored to them again. When the proceedings at 


A fixed form for the conclusion of an armistice is not 
prescribed. A definite and clear declarationis sufficient. 
It is usual and is advisable to have treaties of this kind 
in writing in order to exclude all complication, and, in 
the case of differences of opinion later on, to have a 
firm foimdation to go upon. 

During the armistice nothing must occur which could 
be construed as a continuation of hostilities, the status 
quo must rather be observed as far as possible, provided 
that the wording of the treaty does not particularize 
anything to the contrary. On the other hand the belli- 
gerents are permitted to do everything which betters 
or strength's their position after thi expity of the 
armistice and the continuation of hostiUties. Thus, for 
example, troops may unhesitatingly be exercised, firesh 
ones recruited, arms and munitions manufactured, and 
food supplies brought up, troops shifted and reinforce- 
ments brought on the scene. Whether destroyed or 
damaged fortifications may also be restored is a ques- 
tion to which different answers are given by influential 
teachers of the law of nations. It is best settled by 
express agreement in concrete cases, and so with the 
revictuallmg of a besieged fortress. 

As regards its duration, an armistice can be concluded 
either for a determined or an undetermined period, and 
with or without a time for giving notice. If no fixed 
period is agreed upon, then hostihties can be recom- 
menced at any time. This, however, is to be made known 
to the enemy punctually, so that the resumption does 
not represent a surprise. If a fixed time is agreed on, 

ChafEois were reported, General von Manteuffel decided on the 3otb 

January as follows : 

" The news of an armistice for the Army of the South is falae ; 
the operations are to be continued, and the gentlemen in command 
are on no other condition to negotiate with the enemy than that 
of laying down their arms. All other negotiations are, without 
any cessation of hostilities, to be referred to the Commander-in- 


then hostilities can be recommenced the very moment 
it expires, and without any previous notification. The 
commencement of an armistice is, in the absence of an 
express agreement fixing another time, to date from the 
moment of its conclusion ; the armistice expires at 
dawn of the day to which it extends. Thus an armistice 
made to last imtil January ist comes to an end on the 
last hour of December 31st, and a shorter armistice 
with the conclusion of the nimiber of hours agreed upon ; 
thus, for example, an armistice concluded on May ist 
at 6 p.m. for 48 hours lasts until May 3rd at 6 p.m. 






It has already been shown in the introduction that war The civii 
concerns not merely the active elements, but that also is°SSt*toS 
the passive elements are involved in the common ^S?^^ 
suffering, i.e., the inhabitants of the occupied territory 
who do not belong to the army. Opinions as to the 
relations between these peaceable inhabitants of the 
occupied territory and the army in hostile possession 
have fundamentally altered in the course of the last 
century. Whereas in earlier times the devastation 
of the enemy's territory, the destruction of property, 
and, in some cases indeed, the canying away of the 
inhabitants into bondage or captivity, were regarded as 
a quite natural consequence of the state of war, and 
whereas in later times milder treatment of the inhabi- 
tants took place although destruction and annihilation 
as a military resource still continued to be^entertained, 
and the right of plundering the private property of the 
inhabitants remained completely unlimited — ^to-day, 
the universally prevalent idea is that the inhabitants 
of the enemy's territory are no longer to be regarded, 
generally speaking, as enemies. It will be admitted, 
as a matter of law, that the population is, in the excep- 
tional circumstances of war, subjected to the limitations, 



burdens, and measures of compulsion conditioned by it, 
and owes obedience for the time being to the power de 
facto, but may continue to exist otherwise undisturbed 
and protected as in time of peace by the course of law. 
Th«^iiiiis« It follows from all this, as a matter of right, that, as 
mototted. Tcgards the personal position of the inhabitants of the 
occupied territory, neither in Ufe or in limb, in honour 
or in freedom, are they to be injmred, and that every 
unlawful kilUng ; every bodily injury, due to fraud or 
negligence ; every insult ; every disturbance of domes- 
tic peace; every attack on family, honour, and morality 
and, generally, every unlawful and outrageous attack 
or act of violence, are just as strictly punishable as 
though they had been committed against the inhabi- 
tants of one's own land. There follows, also, as a right 
of the inhabitants of the enemy territory, that the 
invading army can only limit their personal independ- 
ence in so far as the necessity of war unconditionally 
demands it, and that any infliction that needlessly goes 
beyond this is to be avoided. 
Thdrduty. As against this right, there is naturally a correspond- 
ing duty on the part of the inhabitants to conduct them- 
selves in a really peaceable manner, in no wise to 
participate in the confli(5t, to abstain from every injury 
to the troops of the power in occupation, and not to 
refuse obedience to the enemy's government. If this 
presumption is not fulfilled, then there can no longer be 
any talk of violations of the immimities of the inhabi- 
tants, rather they are treated and pimished strictly 
according to martial law. 
Of the fan- The conception here put forward as to the relation 
gJ^JJJ^ between the army and the inhabitants of an enemy's 
Srit*^*i£i territory, corresponds to that of the German Staff in the 
vtmL years 1870-71. It was given expression in mmierous 
proclamations, and in still more numerous orders of the 
day, of the German Generals. In contrast to this the 


behaviour of the French authorities more than once 
betrays a complete ignorance of the elementary rules of 
the law of nations, alike in their diplomatic accusations 
against the Germans and in the words used towards 
their own subjects. Thus, on the outbreak of the war, 
a threat was addressed to the Grand Duchy of Baden, 
not only by the French Press but also officially (von 
amtlicher Stelle),^ " that even its women would not be 
protected." So also horses of Prussian officers, who 
had been shot by the peasants, were publicly put up to 
auction by the murderers. So also the Franctireurs 
threatened the inhabitants of villages occupied by the 
Germans that they would be shot and their houses 
burnt down if they received the enemy in their houses 
or "were to enter into intercourse with them." So 
also the prefect of the Cote d'Or, in an official cir- 
cular of November 21st, urges the sub-prefects and 
mayors of his Department to a systematic pursuit of 
assassination, when he says : " The Fatherland does 
not demand of you that you should assemble en 
masse and openly oppose the enemy, it only expects 
that three or four determined men should leave 
the village every morning and conceal themselves 
in a place indicated by nature, from which, with- 
out danger, they can shoot the Prussians ; above 
all, they are to shoot at the enemy's mounted men 
whose horses they are to deliver up at the principal 
place of the Arrondissement. I will award a bonus to 
them (for the delivery of such horses), and will publish 
their heroic deed in all the newspapers of the Depart- 
ment, as well as in the Moniteur," But this conception 
of the relation between the inhabitants and the hostile 
army not only possessed the minds of the provincial 
authorities but also the ce&tral government at Tours 
itself, as is clear from the fact that it held it necessary 

P It will be observed that no authority is given for this statement. 


to stigmatize publicly the members of the municipal 
commission at Soissons who, after an attempt on the 
life of a Prussian sentry by an imknown hand, prudently 
warned their members against a repetition of such 
outrages, when it [the central government] ordered 
" that the names of the men who had lent themselves 
to the assistance and interpretation of the enemy's 
police be immediately forthcoming."* And if, on the 
French side, the proclamation of General von Falcken- 
stein is cited as a proof of similar views on the German 
side — ^the proclamation wherein the dwellers on the 
coast of the North Sea and the Baltic are urged to 
participate in the defence of the coast, and are t(M : 
" Let every Frenchman who sets foot on your coast 
be forfeit " — as against this all that need be said is that 
this incitement, as is well known, had no effect in Ger- 
many and excited the greatest surprise and was pro- 
perly condemned. 

What tfae Having thus developed the principles governing the 
jnyadermay ^^^^^^^^ betwccH the hostilc army and the inhabitants, 
we will now consider somewhat more closely the duties 
of the latter and the burdens which, in a given case, it is 
allowable to impose upon it. Obviously a precise 
enumeration of every kind of service which may be 
demanded from them is impossible, but the following 
of the most frequent occurrence are : 

1. Restriction of post, railway and letter communica- 

tion, supervision, or, indeed, total prohibition of the 

2. Limitation of freedom of movement within the 

country, prohibition to frequent certain parts of 
the seat of war, or specified places. 

3. Surrender of arms. 

^ See as to this : Rolin-Jacquemyns, II, 34 ; and Dahn, Der 
Detitsch-Framosische Krieg and das Volkerrecht. 


4. Obligation to billet the enemy's soldiers; prohibition 

of illumination of windows at night and the like. 

5. Production of conveyances. 

6. Performance of work on streets, bridges, trenches 

(Gfaben)y railways, buildings, etc. 

7. Production of hostages. 

As to I, the necessity of interrupting, in many cases, 
railway, postal, and tdegraph communication, of stop- 
ping them or, at the least, stringently supervising them, 
hardly calls for further proof. Human feeling on the 
part of the commanding ofl&cer wiU know what limits 
to fix, where the needs of the war and the necessities of 
the population permit of mutual accommodation. 

As to 2, if according to modem views no inhabitant 
of occupied territory can be compelled to participate 
directly in the fight against his own Fatherland, so, 
conversely, he can be prevented from reinforcing his 
own army. Thus the German staff in 1870, where it had 
acquired authority, in particular in Alsace-Lorraine, 
sought to prevent the entrance of the inhabitants into 
the French army, even as in the Napoleonic wars the 
French authorities sought to prevent the adherence of 
the States of the Rhine Confederation to the army of 
the Allies. 

The view that no inhabitant of occupied territory a manmay 
can be compelled to participate directly in the struggle S SS^hte 
against his own country is subject to an exception by country, 
the general usages of war which must be recorded here : 
the calling up and employment of the inhabitants as 
guides on unfamiliar ground. However much it may 
ruffle human feeling, to compel a man to do harm to 
his own Fatherland, and indirectly to fight his own 
troops, none the less no army operating in an enemy's 
country will altogether renounce this expedient.* 

*[See Editor'i Introduction for criticism of this brutality. — J.H.M.] 


And woiM. But a still more severe measure is the compulsion of 
the inhabitants to furnish information about their own 
army, its strategy, its resources, and its military 
secrets. The majority of writers of all nations are 
unanimous in their condemnation of this measure. 
Nevertheless it cannot be entirely dispensed with ; 
doubtless it will be applied with regret, but the argu- 
ment of war will frequently make it necessary.* 
Of locoed As to 5 and 6, the summoning of the inhabitants 
labour. ^^ supply vehiclcs and perform works has also been 
stigmatized as an unjustifiable compulsion upon the 
inhabitants to participate in "Military operations." 
But it is clear that an officer can never allow such a far- 
reaching extension of this conception, since otherwise 
every possibility of compelling work would disappear, 
while every kind of work to be performed in war, every 
vehicle to be furnished in any connection with the 
conduct of war, is or may be bound up with it. Thus 
the argument of war must decide. The German staff, 
in the War of 1870, moreover, rarely made use of com- 
pulsion in order to obtain civiUan workers for the per- 
formance of necessary works. It paid high wages and, 
therefore, almost always had at its disposal sufficient 
offers. This procedure should, therefore, be maintained 
in future cases. The provision of a supply of labour is 
best arranged through the medium of the local authori- 
ties. In case of refusal of workers punishment can, of 
Of a certain course, be inflicted. Therefore the conduct of the 
rare and tti German civil commissioner, Count Renard — so strongly 
justification, condemned by French jurists and jurists with French 
sympathies — who, in order to compel labour for the 
necessary repair of a bridge, threatened, in case of 
further refusal, after stringent threats of pimishment 
had not succeeded in getting the work done, to punish 
the workers by shooting some of them, was in accord- 
ance with the actual laws of war ; the main thing was 

1 [Ibid.] 


that it attained its object, without its being necessary to 
practise it. The accusation made by the French that, 
on the German side, Frenchmen were compelled to 
labour at the siege works before Strassburg, has been 
proved to be incorrect. 

7. By hostages are understood those persons who, Ho§uge^ 
as security or bail for the fulfilment of treaties, promises 
or other claims, are taken or detained by the opposing 
State or its army. Their provision has been less usual 
in recent wars, as a result of which some Professors of 
the law of nations have wrongly decided that the taking 
of hostages has disappeared from the practice of civilized 
nations. As a matter of fact it was frequently practised 
in the Napoleonic wars ; also in the wars of 1848, 1849, 
and 1859 by the Austrians in Italy ; in 1864 and 1866 by 
Prussia ; in the campaigns of the French in Algiers ; 
of the Russians in the Caucasus ; of the English in 
their Colonial wars, as being the usual thing. The un- 
favourable criticisms of it by the German staff in 
isolated cases is therefore to be referred to different 
groimds of applied expedients.* 

A new appUcation of " hostage-right " was practised by a " haiA^^ 
the German staff in the war of 1870, when it compelled ^^f 
leading citizens from French towns and villages to 
accompany trains and locomotives in order to protect 
the railway communSSrtions which were threatened by 
the people. Since the lives of peaceable inhabitants 
were without any fault on their part thereby exposed to 
grave danger, every writer outside Germany has stigma- 
tized this measure as contrary to the law of nations and 

^ For example, the canying off of forty leading citizens from Dijon 
and neighbouring towns as reprisals against the making prisoners 
of the crew of German merchantmen by the French (undoubtedly 
contrary to the law of nations), the pretence being that the crews 
could serve to reinforce the German navy (a pretence strikingly 
repudiated by Bismarck's Notes of October 4th and November i6th, 
1870). LUder, Das Landkriegsrecht, p. 11 1. 


as unjustified towards the inhabitants of the country. 
As against this unfavourable criticism it must be pointed 
out that this measure, which was also recognized on the 
German side as harsh and cruel, was only resorted to after 
declarations and instructions of the occupying^ authori- 
ties had proved ineffective, and that in the particular 
circmnstance it was the only method which promised to 
be effective against the doubtless unauthorized, indeed 
the criminal, behaviour of a fanatical population. 
l^jJj^^H Herein lies its justification under the laws of war, but 
still more in the fact that it proved completely suc- 
cessful, and that wherever citizens were thus carried 
on the trains (whether result was due to the increased 
watchfulness of the communes or to the immediate in- 
fluence on the population), the security of trafi&c was 

To protect oneself against attack and injuries from 
the inhabitants and to employ ruthlessly the necessary 
means of defence and intimidation is obviously not only 
a right but indeed a duty of the staff of the army. The 
ordinary law will in this matter generally not suffice, 
it must be supplemented by the law of the enemy's 
might. Martial law and courts-martial must take the 
place of the ordinary jurisdiction.* 

To Martial law are subject in particular : 

1. AH attacks, violations, homicides, and robberies, by 

soldiers belonging to the army of occupation. 

2. All attacks on the equipment of this army, its 

supplies, ammunition, and the like. 

^ Proclamation of the Governor<General of Alsace, and to the same 
effect the Governor-General of Lorraine of October i8th, 1870. 

> See Loning, Die Verwaltung des General-gouvernements im 
Elsassj p. 107. 

' For a state of war the provisions of the Prussian Law of June 
4th, 1 86 1, still hold good to-day. According to this law all the in- 
habitants of the territory in a state of siege are subject to military 
courts in regard to certain punishable proceedings. 


3. Every destruction of communication, such as 

bridges, canals, roads, railways and telegraphs. 

4. War rebellion and war treason. 

Only the fourth point requires explanation. 

By war rebellion is to be understood the taking up of war 
arms by the inhabitants against the occupation ; by ^**"^**^ 
war treason on the other hand the injury or imperilling 
of the enemy's authority through deceit or through 
communication of news to one's own army as to the 
disposition, movement, and intention, etc., of the army 
in occupation, whether the person concerned has come 
into possession of his information by lawful or unlawful 
means {i.e., by espionage). 

Against both of these only the most ruthless measures 
are effective. Napoleon wrote to his brother Joseph, 
when, after the latter ascended the throne of Naples, 
the inhabitants of lower Italy made various attempts 
at revolt : " The security of your dominion depends 
on how you behave in the conquered province. Bum 
down a dozen places which are not willing to submit 
themselves. Of course, not until you have first looted 
them ; my soldiers must not be allowed to go away 
with their hands empty. Have three to six per- 
sons hanged in every village which has joined the 
revolt ; pay no respect to the cassock. Simply bear 
in mind how I dealt with them in Piacenza and 
Corsica." The Duke of Wellington, in 1814, threat- 
ened the South of France ; "he will, if leaders of fac- 
tions are supported, bum the villages and have their 
inhabitants hanged." In the year 1815, he issued the 
following proclamation : " All those who after the 
entry of the (English) army into France leave their 
dwellings and all those who are found in the service of 
the usurper will be regarded as adherents of his and as 
enemies ; their property will be used for the mainten- 
ance of the army." " These are the expressions in the 


one case of one of the great masters of war and of the 
dominion founded upon war power, and in the other, 
of a conunander-in-chief who elsewhere had carried the 
protection of private property in hostile lands to the 

'^ extremest possible limit. Both men as soon as a popu- 

lar rising takes place resort to terrorism." * 

Z^*' « ^ A particular kind of war treason, which must be 

■ ■M^k^tfMi Ann ^ 

uofHUtef briefly gone into here, inasnmch as the views of the 
^^'*"*^ jurists about it differ very strongly from the usages 
of war, is the case of deception in leading the way, 
perpetrated in the form of deliberate guiding of the 
enemy's troops by an inhabitant on a false or disadvan- 
tageous road. If he has offered his services, then the fact 
of his treason is quite clear, but also in case he was 
forced to act as guide his offence cannot be judged 
differently, for he owed obedience to the power in 
occupation ; he durst in no case perpetrate an act of 
open resistance and positive harm but should have, if 
the worst came to the worst, Umited himself to passive 
disobedience, and he must therefore bear the conse- 
Another Howcvcr intelligible the inclination to treat and to 

SSri"* judge an offence of this kind from a milder standpoint 
may appear, none the less the leader of the troops thus 
harmed cannot do otherwise than punish the offender 
with death, since only by harsh measures of defence 
and intimidation can the repetition of such offences be 
prevented. In this case a court-martial must precede 
the infliction of the penalty. The court-martial must 
however be on its guard against imputing hastily a 
treasonable intent to the guide. The punishment of 
misdirection requires in every case proof of evil inten- 

Also it is not allowable to diplomatic agents to make 

1 J. von Hartmann, Kritiscke Versuche, II, p. 73. 
* Luder, Das Landkriegsrecht, p. 103. 


communications from the country which they inhabit 
during the war to any side as to the military situation 
or proceedings. Persons contravening this universally 
recognized usage of war may be immediately expelled 
or in the case of great danger arrested. 



pJ«^SjSLd Since, according to the law of nations and the law of war 
its immmii- to-dajT, war makes enemies of States and not of private 
persons, it follows that every arbitrary devastation of 
the country and every destruction of private property, 
generally speaking every unnecessary (i.e., not required 
by the necessity of war) injury to aUen property, is 
contrary to the law of nations. Every inhabitant of the 
territory occupied is therefore to be protected alike in 
his person and in his property. 

In this sense spoke King William to the French at the 
beginning of the Campaign of 1870 : " I wage war with 
the French soldiers and not with the French citizens. 
The latter will therefore continue to enjoy security for 
their person and their goods, so long as they do not by 
hostile undertakings against German troops deprive me 
of the right to afford them my protection." 

The question stands in quite another position if 
the necessity ^f war demands the requisition of the 
stranger's property, whether public or private. In 
this case of course every sequestration, every tempo- 
rary or permanent deprivation, every use, every injury 
and all destruction are permitted. 

The following principles therefore result : 

I. Prohibited unconditionally are all aimless destruc- 
tions, devastations, burnings, and ravages of the 
enemy's country. The soldier who practises such 
things is punished as an offender according to the 
appropriate laws.' 

* Obviously we are only speaking of a war between civilized pec^le 
since, in the case of savages and barbarians, humaoity is not advanced 



2. Permissible on the other hand are all destructions 
and injuries dictated by military considerations; 
and, indeed, 

(a) All demolitions of houses and other build- 
ings, bridges, railways, and telegraphic 
establishments, due to the necessity of military 

(b) All injuries which are required through 
military movements in the country or for 
earthworks for attack or defence. 

Hence the double rule : No harm must be done, not 
even the very slightest, which is not dictated by military 
consideration ; every kind of harm may be done, even 
the very utmost, which the conduct of war requires or 
which comes in the natural course of it. 

Whether the natural justification exists or not is a 
subject for decision in each individual case. The answer 
to this question lies entirely in the power of the. Com- 
manding Officer, from whose conscience our times can 
expect and demand as far-reaching humanity as the 
object of war permits. 

On similar principles must be answered the question 
as to the temporary use of property, dispositions as to 
houses and the like : no inhabitant of the occupied 
territory is to be disturbed in the use and free disposi- 
tion of his property, on the other hand the necessity of 
war justifies the most far-reaching disturbance, restric- 
tion, and even imperilling of his property. In conse- 
quence theie are permitted : 

1. Requisitions of houses and their furniture for the 

purpose of billeting troops. 

2. Use of houses and their furniture for the care of the 

sick and wounded. 

3. Use of buildings for observation, shelter, defence, 

fortification, and the like. 

very far, and one cannot act otherwise toward them than by devasta- 
tion of their grain fields, driving away of their herds, taking of 
hostages, and the like. 


Whether the property owners are subjects of the 
occupied territory or of a Foreign State is a matter of 
complete indifference ; also the property of the Sovereign 
and his family is subject to no exception, although 
to-day it is usually treated with courtesy. 

The conception of the inviolability of private pro- 
bi£Sm perty here depicted was shared by the Germans in 1870 
and was observed. If on the French side statements to 
the contrary are even to-day given expression, they rest 
either on untruth or exaggeration. It certainly cannot 
be maintained that no illegitimate violations of private 
property by individuals ever occurred. But that kind 
of thing can never be entirely avoided even among the 
most highly cultivated nations, and the best disciplined 
armies. In every case the strictest respect for private 
property was enjoined* upon the soldiers by the German 
Military Authorities after crossing the frontier, and 
strong measures were taken in order to make this in- 
junction effective ; the property of the French was 
indeed, as might be shown in numerous cases, protected 
against the population itself, and was even in several 
cases saved at the risk of our own lives.* 


^ Army Order of August 8th, 1870, on crossing the frontier : 
" Soldiers! the pursuit of the enemy who has been thrust back 
after bloody struggles has already led a great part of our army across 
the frontier. Several corps will to-day and to-morrow set foot upon 
French soil. I expect that the discipline by which you have hitherto 
distinguished yourselves will be particularly observed on the enemy's 
territory. We wage no war against the peaceable inhabitants of tho 
country ; it is rather the duty of every honour-loving soldier to 
protect private property and not to allow the good name of our 
army to be soiled by a single example of bad d^cipUne. I count 
upon the good spirit which animates the army, but at the same time 
also upon the sternness and circumspection of all leaders. 

Headquarters, Homburg, August 8th, 1870. 

{Signed) Wilhelm." 
•"It is well known that the vineyards in France were guarded and 
protected by the German troops, but the same thing happened in re- 
gard to the art treasures of Versailles, and the German soldiers pro- 
tected French property at the risk of their lives against the incendiary 
bombs of the Paris Commune." — Luder, Landkriegstecht, p. 118. 


In like manner arbitrary destructions and ravages of Tb» »«ji« 
buildings and the like did not occur on the German side lo^ing-giass 
where ttiey were not called forth by the behaviour of the 
inhabitants themselves. They scarcely ever occurred 
except where the inhabitants had foolishly left their 
dwellings and the soldiers were excited by closed doors 
and want of food. " If the soldier finds the doors of his 
quarters shut, and the food intentionally concealed or 
buried, then necessity impels him to burst open the 
doors and to track the stores, and he then, in righteous 
anger, destroys a mirror, and with the broken furniture 
heats the stove."* 

If minor injuries explain themselves in this fashion 
in the eyes of every reasonable and thinking man, so 
the result of a fundamental and unprejudiced examina- 
tion has shown that the destructions and ravages on a 
greater scale, which were made a reproach against the 
German Army, have in no case overstepped the necessity 
prescribed by the military situation. Thus the much 
talked of, and, on the French side, enormously exag- 
gerated, burning down of twelve houses in Bazeilles, 
together with the shooting of an inhabitant, were com- 
pletely justified, and, indeed, in harmony with the laws 
of war ; indeed one may maintain that the conduct of 
the inhabitants would have called for the complete 
destruction of the village and the condemnation of all 
the adult inhabitants by martial law. 

^ Bluntschli, Volkerrecht, sec. 652. 



Booiy In section i, the inhabitant of the enemy's territory 
was described as a subject of legal rights and duties, 
who, so far as the nature of war allows, may continue 
to live protected as in time of peace by the course of 
law; further, in section 2, property, whether it be 
public or private, was likewise, so far as war allows it, 
declared to be inviolable — ^it therefore follows logically 
that there can exist no right to the appropriation of the 
property, i.e., a right to booty or plundering. Opinions 
as to this have, in the course of the last century, 
undergone a complete change ; the earlier unlimited 
right of appropriation in war is to-day recognized in 
regard to public property as existing only in defined 

In the development of the principles recognized 
to-day we have to distinguish 

1. State property and unquestionably : 

(a) immovable,* 
(h) movable.* 

2. Private property : 

(a) immovable, 
(h) movable. 

Immovable State property is now no longer forfeited 
as booty ; it may, however, be used if such use is in 
the interests of military operation, and even destroyed, 
or temporarily administered. While in the wars of 

^ [These terms are translated literally. They are roughly equiva- 
lent to the English distinction between " real " and " personal " 
property. — J.H.M.] 


the First French Einpit«, Napoleon, in numerous cases, 
even during the war itself, disposed of the public 
property of the enemy (domains, castles, mines, salt- 
works) in favour of his marshals and diplomatists, to-day 
an appropriation of this kind is considered by inter- 
national opinion to be unjustified, and, in order to be 
vaUd, requires a formal treaty between the conqueror 
and the conquered. 

The Military Government by the army of occupation The state 
is only a Usufructuary pro tempore. It must, therefore, S^u^St 
avoid every purposeless injury, it has no right to sell ^JJ^S*** ^ 
or dispose of the property. According to this juristic 
view the military adlninistration of the conqueror dis- 
poses of the public revenue and taxes which are raised 
in the occupied territory, with the imderstanding, how- 
ever, that the regular and unavoidable expenses of 
administration continue to be defrayed. The military 
authority controls the railways and telegraphs of the 
enemy's State, but here also it possesses only the right 
of use and has to give back the material after the end 
of the war. In the administration of the State forests, 
it is not bound to follow the mode of administration of 
the enemy's Forest authorities, but it must not damage 
the woods by excessive cutting, still less may it cut 
them down altogether. 

Movable State property on the other hand can, sute Per- 
according to modem views, be unconditionally appro- SSS<!J3 
priated by the conqueror. the victor. 

This includes public funds/ arms, and munition 
stores, magazines, transport, material supplies useful 
for the war and the Uke. Since the possession of things 
of this kind is of the highest importance for the conduct 
of the war, the conqueror is justified in destroying and 
annihilating them if he is not able to keep them. 

^To be entirely distinguished from municipal funds which are 
regarded as private property. ' 


On the other hand an exception is made as to aH 
objects which serve the purposes of religious worship, 
education, the sciences and arts, charities and nursing; 
Protection must therefore be extended to : the property 
of churches and schools, of libraries and museums, of 
almshouses and hospitals. The usual practice of the 
Napoleonic campaigns^ so ruthlessly resorted to of 
carrying ofE art treasures, antiquities, and whole 
collections, in order to incorporate them in one's own 
art galleries, is no longer allowed ty the law of nations 
Private Immovable private property may well be the 

'****'* object of military operations and military policy, but 
cannot be appropriated as booty, nor expended for 
fiscal or private purposes of acquisition. This also 
includes, of course, the private property of the ruling 
family, in so far as it really possesses this character and 
is not Crown Lands, whose fruits are expended as a 
kind of Civil List or serve to supplement the same. 
Private Movable private property, finally, which in earlier 

p*'~°*'*3^ times was the imdeniable booty of the conqueror, is to- 
day regarded as inviolable. The carrying off of money, 
watches, rings, trinkets, or other objects of value, is 
therefore to be regarded as criminal robbery and to be 
punished accordingly. 

The appropriation of private property is regarded 
as partially permissible in the case of those objects 
which the conquered combatant carries on his own 
person. Still here, also, opinions against the practice 

^ How sensitive, indeed, how utterly sentimental, public opinion 
has become to-day in regard to this question, is shown by the atti- 
tude of the French and German Press in regard to some objeets of 
art carried away from China. 

* As to booty in the shape of horses, the Prussian instructions say : 
" Horses taken as booty belong to the State and are therefore to be 
handed over to the horse depot. For every horse which is still 
serviceable he who has captured it receives a bonus of i8 dollars out 
of the exchequer, and for every unserviceable hone ha^f this sum. 


make it clear that the taking away of objects of value, 
money, and such-like is not permissible, and only those 
required for the equipment of troops are declared capable 
of appropriation. 

The recognition of the inviolability of private property 
does not of coxirse exclude the sequestration of such 
objects as can, although they are private property, 
at the same time be regarded as of use in war. This 
includes, for example, warehouses of supplies, stores of 
arms in factories, depots of conveyances or other means 
of traiiic, as bicycles, motor cars, and the like, or other 
articles likely to be of use with advantage to the army, 
as telescopes, etc. In order to assure to the possessors 
compensation from their government, equity enjoins 
that a receipt be given for the sequestration. 

Logically related to movable property are the so-called l^^^ ^ 
" incorporeal things." When Napoleon, for example, 
appropriated the debts due to the Elector of Hesse and 
thus compelled the Elector's debtors to pay their debts 
to him ; when he furthermore in 1807 allowed the debts 
owed by the inhabitants of the Duchy of Warsaw to 
Prussian banks and other public institutions, and indeed 
even to private persons in Prussia, to be assigned by the 
King of Prussia, and then sold them to the King of 
Saxony for 200 million francs, this was, according to 
the modem view, nothing better than robbery. 

Plundering is to be regarded as the worst form of "^iS^Sdl' 
appropriation of a stranger's property. By this is to be 
understood the robbing of inhabitants by the employ- 
ment of terror and the abuse of a military superiority. 
The main point of the ofience thus consists in the fact that 
the perpetrator, finding himself in the presence of the 
browbeaten owner, who feels defenceless and can offer 
no opposition, appropriates things, such as food and 
clothing, which he does not want for his own needs. It 
is not plundering but downright burglary if a man pilfers 


things out of uninhabited houses or at times when the 
owner is absent. 

Plundering is by the law of nations to-day to be re^ 
garded as invariably unlawful. If it may be difficult 
sometimes in the very heat of the fight to restrain 
excited troops from trespasses, yet unlawful plundering, 
extortion, or other violations of property, must be most 
sternly punished, it matters not whether it be done by 
members of unbroken divisions of troops or by detached 
soldiers, so-called marauders, or by the "hyenas of the 
battlefield." To permit such transgressions only 
leads, as experience shows, to bad discipline and the 
demoralization of the Army.* 

In the Franco-Prussian War, plundering and taking 
of booty were on the German side sternly forbidden. 
The Articles of War in question were repeatedly recalled 
to every soldier just as in time of peace, also numerous 
orders of the day were issued on the part of the higher 
authorities. Transgressions were ruthlessly punished, 
in some cases even after the War. 

* Napoleon, who actually permitted his soldiers to plunder in 
numerous cases and in others, at least, did not do his best to prevent 
it, spoke of it at St. Helena : " Policy and morality are in complete 
agreement in their opposition to pillage. I have meditated a good 
deal on this subject ; I have often been in a position to gratify my 
soldiers thereby : I would have done it if I had found it advantageous. 
But nothing is more calculated to disorganize and completely ruin 
an army. From the moment he is allowed to pillage, a soldier's 
discipline is gone." 




By requisitions is to be understood the compulsory ^^^^^ 
appropriation of certain objects necessary for the army 
which is waging war. What things belong to this 
category is quite undetermined. They were primarily 
the means to feed man and i>east, next to clothe and 
equip the members of the army, i.e., to substitute cloth- 
ing and equipment for that which has worn out or 
become insufficient in view of the altered circumstances 
and also to supplement it ; furthermore there will be 
such objects as serve for the transport of necessaries, 
and finally all objects may be demanded which serve 
to supply a temporary necessity, such as material 
and tools for the building of fortifications, bridges, 
railways and the like. That requisitions of this kind 
are unconditionally necessary and indispensable for 
the existence of the army, no one has yet denied ; and 
whether one bases it legally upon necessity or merely 
upon the might of the stronger is a matter of indiffer- 
ence as far as the practice is concerned. 

The right generally recognized by the law of nations J^*^. 
of to-day to requisition is a child of the French Revolu- man leamt 
tion and its wars. It is known that as late as in the way.** 
year 1806, Prussian battalions camped close to big 
stacks of com and bivouacked on potato fields without 
daring to appease their hunger with the property of the 
$tranger ; the behaviour of the French soon taught 
them a better way. Everyone knows the ruthless 
fashion in which the army of the French Republic and 



of Napoleon satisfied their wants« but of late opinion 
laying stress upon the protection of private property 
has asserted itself. Since a prohibition of requisitions 
would, considering what war is, have no prospect of 
acceptance under the law of nations, the demand has 
been put forward that the ol)jects supplied should at 
least be paid for. This idea has indeed up till now not 
become a principle of war, the right of requisitioning 
without payment exists as much as ever and will cer* 
tainly be claimed in the future by the armies in the 
field, and also, considering the size of modem armies, 
must be claimed ; but it has at least become the custom 
to requisition with as much forbearance as possible, 
and to furnish a receipt for what is taken, the discharge 
of which is then determined on the conclusion of peace. 
tte^SS^ In order to avoid overdoing it, as may easily happen 
bliM?i *"^ the case of requisitions, it is often arranged that 
to do it"*" requisitions may never be demanded by subordinates 
but only by the higher officers, and that the local civil 
authorities shall be employed for the purpose. It 
cannot, however, be denied that this is not always 
possible in war ; that on the contrary the leader of a 
small detachment and in some circumstances even a 
man by himself may be under the necessity to requisi- 
tion what is indispensable to him. Article 40 of the 
Declaration of Brussels requires that the requisitions 
(being written out) shall bear a direct relation to the 
capacity and resources of a country, and, indeed, the 
justification for this condition would be willingly recog- 
nized by everyone in theory, but it will scarcely ever be 
observed in practice. In cases of necessity the needs of 
the army will alone decide, and a man does well gener- 
ally to make himself familiar with the reflection that, in 
the changing and stormy course of a war, observance of 
the orderly conduct of peaceful times is, with the best 
will, impossible. 


In the Franco-Prussian War of 1870 much was re- 
quisitioned on the German side. According to the 
opinion of all impartial writers it was done with modera- 
tion and the utmost tenderness for the inhabitants, 
even if in isolated cases excesses occurred. Receipts 
were always furnished. Later, in the ca se of the army 
on the Meuse, as early as the middle of October requisi- 
tions were, wherever it was possible, entirely left out of 
account and everything was paid for in cash. Later 
proceedings were frequently and indeed studiously con- 
ducted with a precise estimate of the value in thalers 
or francs.^ *' Moreover, military history knows of no 
campaign in which the victualling of an army at such 
a distance from home was so largely conducted with its 
own stores." • . 

By war levies or contributions is to be understood the "Buccaneer- 
raising of larger or smaller sums of money from the *^ ^®^** " 
parishes of the occupied territory. They are thus to be 
distinguished from requisitions since they do not serve 
for the satisfaction of a momentary want of the army 
and consequently can only in the rarest cases be based 
upon the necessity of war. These levies originated as 
so-called " Brandschatzungen," i.^., as a ransom from 
plundering and devastation, and thus constituted, com- 
pared with the earlier looting system, a step in the 
himianizing of war. Since the law of nations to-day 
no longer recognizes any right to plundering and 
devastation, and inasmuch as the principle that war is 
conducted only against States, and not against private 
.persons, is uncontested, it follows logically that levies 
which can be characterized as simply booty-making or 
plundering, that is to say, as arbitrary enrichment of 
the conquerors, are not permitted by modern opinion. 
The conqueror is, in particular, not justified in recouping 

*Dahn. Jahrhwihf. A.u.M,, III, 1876. Jacquemyiu Revue. 
•Dahn, ibid.. Ill, 1871. 


himsdf for the cost of the war by inroads upon the 
property of private persons, even though the war was 
forced upon him. 

War levies are^therefore only^allowed : 

1. As a substitute for taxes. 

2. As a substitute for the supplies to be furnished as 

requisitions by the population. 

3. As punishments. 

As to I : This rests upon the right of the power in 
occupation to raise and utilize taxes. 

As to 2 : In cases where the provision of prescribed 
objects in a particular district is impossible, and in con- 
sequence the deficiency has to be met by purchase in a 
neighbouring district. 

As to 3 : War levies as a means of punishing indi- 
viduals or whole parishes were very frequently employed 
in the Franco-Prussian War. If French writers accuse 
the German staff of excessive severity in this respect, 
on the other hand it is to be remarked that the em- 
bittered character which the war took on in its latest 
stage, and the lively participation of the population 
therein, necessitated the sternest measures. But a 
money tax, judging by experience, operates, in most 
cases, on the civil population. The total sum of all the 
money contributions raised in the War of 1870 may be 
called a minimimi compared with the sums which 
Napoleon was accustomed to draw from the territories 
occupied by him. According to official estimates, havoc 
amounting to about six milliards of francs was visited 
upon the four million inhabitants of Prussia in the years 

In regard to the raising of war levies it should be noted 
that they should only be decreed by superior officers and 
only raised with the co-operation of the local authorities. 
Obviously an acknowledgment of every sum raised is 
to be furnished. 


1. In the military laws of different countries the right of 

levying contributions is exclusively reserved to the 

2. The usual method of raising taxes would, in con- 

sequence of their slowness, not be in harmony with 
the demands of the War; usually, therefore, the 
Civil Authorities provide themselves with the 
necessary money by a loan, the repayment of 
which is provided for later by law. 



l^^ter According to earlier views right up to the last century, 
Suntey^ a Government whose army had victoriously forced 
itself into the territory of a foreign State could do 
exactly as it pleased in the part occupied. No regard 
was to be paid to the constitution, laws, and rights of 
the inhabitants. Modem times have now introduced, 
in this respect, a change in the dominant conceptions, 
and have established a certain legal relationship between 
the inhabitants and the army of occupation. If, in the 
following pages. We develop briefly the principles which 
are applied to the government of territory in occupa- 
tion, it must none the less be clearly emphasized that 
the necessities of war not only allow a deviation from 
these principles in many cases but in some circumstances 
make it a positive duty of the Commander. 

The occupation of a portion of the enemy's territory 
does not amount to an annexation of it. The right of 
the original State authority consequently remains in 
existence; it is only suspended when it comes into 
collision with the stronger power of the conqueror 
during the term of the occupation, i.e., only for the time 

* The King of Denmark in 171 5, whilst Charles XII, after the 
Battle of Pultawa, stayed for years in Bender, sold the conquered 
principalities of Bremen and Verden to the King of England, Elector 
of Hanover, before England had yet declared war on Sweden. This 
undoubtedly unlawful act of England first received formal recogni- 
tion in the Peace of Stockholm, 1720. 



But the administration of a country itself cannot be 
interrupted by war ; it is therefore in the interest of the 
country and its inhabitants themselves, if the conqueror 
takes it in hand, to let it be carried on either with the 
help of the old, or, if this is not feasible, through the 
substitution of the new, authorities. 

From this fundamental conception now arises a 
series of rights and duties of the conqueror on the one 
side and of the inhabitants on the other. 

Since the conqueror is only the substitute for thej^jjj!? 
real Government, he will have to establish the continua- SJ^toS*"' 
tion of the administration of the country with the help 
of the existing laws and regulations. The issue of new 
laws, the abolition or alteration of old ones, and the like, 
are to be avoided if they are not excused by imperative 
requirements of war ; only the latter permit legislation 
which exceeds the need of a provisional administration. 
The French Republic, at the end of the eighteenth 
century, frequently abolished the pre-existing constitu- 
tion in the States conquered by it, and substituted a 
Republican one, but this is none the less contrary to the 
law of nations to-day. On the other hand, a restriction of 
the freedom of the Press, of the right of association, and 
of public meeting, the suspension of the right of election 
to the Parliament and the like, are in some circumstances 
a natural and ima voidable consequence of the state of 

The inhabitants of the occupied territory owe the same SiJ^muli 
obedience to the organs of Government and adminis- ^^' 
tration of the conqueror as they owed before the occu- 
pation to their own. An act of disobedience cannot be 
excused by reference to the laws or commands of one's 
own Government ; even so an attempt to remain 
associated with the old Government or to act in agree- 
ment with it is punishable. On the other hand, the 
provisional Government can demand nothing which 


can be construed as an ofience against one's own 
Fatherland or as a direct or indirect participation in 
the war. 
Martial uw. The civil and criminal jurisdiction continues in force 
as before. The introduction of an extraordinary 
administration of justice — martial law and courts- 
martial — ^is therefore only to take place if the behaviour 
of the inhabitants makes it necessary. The latter are, 
in this respect, to be cautioned, and any such introduc- 
tion is to be made known by appropriate means. The 
courts-martial must base any sentence on the funda- 
mental laws of justice, after they have first impartially 
examined, however summarily, the facts and have 
allowed the accused a free defence. 

The conqueror can, as administrator of the country 
and its Government, depose or appoint officials. He 
can put on their oath the civil servants, who continue 
to act, as regards the scrupulous discharge of their 
duties. But to compel officials to continue in office 
against their will does not appear to be in the interest 
of the army of occupation. Transgressions by officials 
are punished by the laws of their country, but an abuse 
of their position to the prejudice of the army of occupa- 
tion wiU be punished by martial law. 

Also judicial ofiBicers can be deposed if they permit 
themselves to oppose publicly the instructions of the 
provisional Government. Thus it would not have been 
possible, if the occupation of Lorraine in the year 1870- 
71 had been protracted, to avoid deposing the wl^ole 
bench of Judges at Nancy and substituting German 
Judges, since they could not agree with the German 
demands in regard to the promulgation of sentence.^ 

^ The German administration desired that, as hitherto, justice 
should be administered in the name of the Emperor (Napoleon III). 
The Court, on the contrary, desired, after therevolution of September 
4th, 1876, to use the formula : "In the name of the French Re- 
public." The Court no longer recognized the Emperor as Sovereign, 


The financial administration of the occupied territory FtoMi Poiky 
passes into the hands of the conqueror. The taxes 
are raised in the pre-existing fashion. Any increase 
in them due to the war is enforced in the form of " War 
levies." Out of the revenue of the taxes the costs of 
the administration are to be defrayed, as, generally 
speaking, the foundations of the State property are 
to be kept undisturbed. Thus the domains, forests, 
woodlands, public buildings and the like, although 
utilized, leased, or let out, are not to be sold or rendered 
valueless by predatory management. On the other 
hand it is permitted to apply all surplus from the reve- 
nues of administration to the use of the conqueror. 

The same thing holds good of railways, telegraphs, 
telephones, canals, steamships, submarine cables and 
similar things ; the conqueror has the right of seques- 
tration, of use and of appropriation of any receipts, as 
against which it is incumbent upon him to keep them 
in good repair. 

If these establishments belong to private persons, 
then he has indeed the right to use them to the fullest 
extent ; on the other hand he has not the right to 
sequestrate the receipts. As regards the right of 
annexing the rolling-stock of the railways, the opinions 
of authoritative teachers of the law of nations differ 
from one another. Whilst one section regard aU rolling- 
stock as one of the most important war resources 
of the enemy's State, and in consequence claim for the 
conqueror the right of tmlimited sequestration, even 
if the railways belonged to private persons or private 
companies,^ on the other hand the other section incline 

the German authorities did not yet recognize the Republic. Finally 
the Court, unfortunately for the inhabitants, ceased its activities. 
The proper solution would have been, according to Bluntschli (547), 
either the use of a neutral formula, as, for example, " In the name of 
the law," or the complete omission of the supei^uous formula. 
^ Stein, Revue 17, Declaration of Brussels, Article 6. 


to a milder interpretation of the question, in that they 
start from the view that the rolling-stock forms, along 
with the immovable material of the railways, an insep- 
arable whole, and that one without the other is worthless 
and is therefore subject to the same laws as to appro- 
priation.^ The latter view in the year 1871 found 
practical recognition in so far as the rolling-stock 
captured in large quantities by the Germans on the 
French railways was restored at the end of the war ; 
a corresponding regulation was also adopted by The 
Hague Conference in 1899. 
OMupAtko These are the chief principles for the administration 
SftctitioM. of an occupied country or any portion of it. From 
them emerges quite clearly on the one hand the duties 
of the population, but also on the other the limits of the 
power of the conqueror. But the enforcement of all 
these laws presupposes the actual occupation of the 
enemy's territory and the possibility of really carrying 
them out.* So called "fictitious occupation," such 
as frequently occurred in the eighteenth century and 
only existed in a declaration of the claimant, without 
the country concerned being actually occupied, are 
no longer recognized by influential authorities on the 
law of nations as valid. If the conqueror is compelled 
by the vicissitudes of war to quit an occupied territory, 
or if it is voluntarily given up by him, then his military 
sovereignty immediately ceases and the old State 
authority of itself again steps into its rights and duties. 

1 Manuel 31 ; Moynier, Revue 19, 165. 

* Article 42 of The Hague Regulations runs : " Territory ia eoa* 
sidered to be occupied when it is placed as a matter of fact under the 
autl^ority of the hostile army. The occupation extends only to 
territories where that authority is established and capable of being 



By the neutrality of a State is to be understood non- wha* 
participation in the war by third parties ; the duly meant. 
attested intention not to participate in the conduct of 
the war either in favour of, or to the prejudice of, either 
one of the two belligerents. 'Hiis relationship gives 
rise in the case of the neutral State to certain rights 
but also tq, fixed duties. These are not laid down by 
international regulations or international treaties; we 
have therefore here also to do with " Usages of War." 

What is principally required of a neutral State isAaeutwi 
equal treatment of both belligerents. If, therefore, the SS* to au 
neutral State could support the belligerents at all, ittoU^mSt 
would have to give its support in equal measure to both Sy^lrSm! 
parties. As this is quite impossible and as one of 
the two parties — and probably every one of them — 
would regard itself as injured in any case, it therefore 
follows as a practical and empirical principle : '' not 
to support the two [i.e., either or both] belligerents 
is the fundamental condition of neutrality." 

But this principle would scarcely be maintained in its But tiMn 
entirety, because in that case the trade and intercourse thi$ d«ueh- 
of the neutral State would in some circumstances be '""*• 
ihore injured than that of the belligerents themselves. 
But no State can be compelled to act against its own 
vital interests, therefore it is necessary to limit the 
above principle as follows : " No neutral State can 
support the belligerents as far as] miUtary operations 
are concerned. This principle sounds very simple and 


lucid ; its content is, however, when closely considered 
very ambiguous and in consequence the danger of 
dissensions between neutral and belligerent States is 
very obvious." 

In the following pages the chief duties of neutral 
States are to be briefly developed. It is here assumed 
that neutrality is not to be regarded as synonymous 
with indifference and impartiality towards the belliger- 
ents and the continuance of the war. As regards the 
expression of partisanship all that is required of neutral 
States is the observance of international courtesies ; 
so long as these are observed there is no occasion for 
wMtoL' **** ^^ ^^^^ duties of neutral States are to be regarded 

Sm?^** I. The territory of neutral States is available for none 
waraadoff. of the belligerents for the conduct of its military 

operations.* The Government of the neutral State 
has therefore, once War is declared, to prevent 
the subjects of both parties from marching 
through it ; it has likewise to prevent the laying out 
of factories and workshops for the manufacture of 
War requisites for one or other of the parties. Also 
the organization of troops and the assembling of 
** Freelances " on the territory of neutral States 
is not allowed by the law of nations.* 

^Thc passage of French troops through Prussian territory in 
October, 1805, was a contempt of Prussian neutrality. — The moment 
the Swiss Government permitted the Allies to march through its 
territory in the year 1814, it thereby renounced the rights of a 
neutral State. — In the Franco-Prussian War the Prussian Govern- 
ment complained of the behaviour of Luxemburg in not stopping a 
passage en massg of fugitive French soldiers after the fall of Metz 
through the territory of the Grand Duchy. 

* The considerable reinforcement of the Servian Army in the year 
1876 by Russian Freelances was an open violation of neutrality, the 
more so as the Government gave the officers permission, as the 
Emperor himself confessed later to the English Ambassador in 
Livadia. The English Foreign Enlistment Act of 1870, Art. 4,* 
forbids all English subjects during a war in which England remains 
neutral, to enter the army or the navy of a belligerent State, or the 


2. If the frontiers of the neutral State march with The neutral 
those of the territory where the War is being jStovSISae 
wagred, its Government must take care to occupy ^"^I*?!- '* 

» m • /Y* • 4 must iDteni 

Its own frontiers in sumcient strength to prevent tiw Xcet- 
any portions of the belligerent Armies stepping 
across it with the object of marching through or 
of recovering after a Battle, or of withdrawing from 
War captivity. Every member of the belligerent 
Army who trespasses upon the territory of the 
neutral State is to be disarmed and to be put out of 
action till the end of the War. If whole detach- 
ments step across, they must likewise be dealt with. 
They are, indeed, not prisoners of War, but, 
nevertheless, are to be prevented from returning 
to the seat of War. A discharge before the end 
of the War would presuppose a particular arrange- 
ment of all parties concerned. 

If a convention to cross over is concluded, then, 
according to the prevalent usages of War, a copy of 
the conditions is to be sent to the Victor.^ If the 
troops passing through are taking with them 
prisoners of War, then these are to be treated in 
like fashion. Obviously, the neutral State can 
later demand compensation for the maintenance 
and care of the troops who have crossed over, or it 
can keep back War material as a provisional pay- 
ment. Material which is liable to be spoilt, or 
the keeping of which would be disproportionately 
costly, as, for example, a considerable number of 

enlistment for the purpose, without the express permission of the 
Government. Similarly the American law of 1818. The United 
States complained energetically during the Crimean War of English 
recrniting on their territory. 

*[Thi8 Act applies to British subjects wherever they may be, and 
it also applies to sdiens, but only if they enlisted or promoted enlist- 
ment on British territory. For a full discussion of the scope of the 
Act see R. v. Jameson (1896), 2 Q.B. 425. — J.H.M.] 

^ At the end of August, 1870, some French detachments, without 
its being known, marched through Belgian territory ; others in large 
numbers fled after the Battle at Sedan to Belgium, and were there 
disarmed. In February, 1871, the hard-pressed French Army of the 
East crossed into Switzerland and were tiiere likewise disarmed. 


TlM "alttBWB 

lotas to 

of War. 


horses, can be sold, and the net proceeds set off 
against the cost of internment 

3. A neutral State can support no belligerent by 
furnishing military resources of any kind whatso- 
ever, and is bound to prevent as much as possible 
the furnishing of such wholesale on the part of its 
subjects. The ambiguity of the notion '* Kriegs 
mittel " has often led to complications. The most 
indispensable means for the conduct of a War is 
money. For this very reason it is difficult to pre- 
vent altogether the support of one or other party by 
citizens of neutral States, since there will always be 
Bankers who, in the interest of the State in whose 
success they put confidence, and whose solvency in 
the case of a defeat they do not doubt, will pro- 
mote a loan. Against this nothing can be said 
from the point of view of the law of nations ; rather 
the Government of a country cannot be made 
responsible for the actions of individual citizens,^ 
it could only accept responsibility if business of this 
kind was done by Banks immediately under the 
control of the State or on public Stock Exchanges. 
It is otherwise with the supply of contraband of 
war, that is to say, such things as are supplied to a 
belligerent for the immediate support of war as 
being warlike resources and equipment. These may 
include : 

(a) Weapons of war (guns, rifles, sabres, etc., 
ammunition, powder and other explosives, 
and military conveyances, etc.). 

(h) Any materials out of which this kind of war 
supplies can be manufactured, such as salt- 
petre, sulphur, coal, leather, and the like. 

(c) Horses and mules. 

(d) Clothing and equipment (such as uniforms 
of all kinds, cooking utensils, leather straps, 
and footwear). 

(e) Machines, motor-cars, bicycles, telegraphic 
apparatus, and the like. 


All these things are indispensable for the conduct Good 
of war, their supply in great quantities means a pro- ^"*'*°*** 
portionately direct support of the belligerent. On 
the other hand, it cannot be left out of account that 
many of the above-mentioned objects also pertain 
to the peaceable needs of men, i.e., to the means 
without which the practice of any industry would 
be impossible, and the feeding of great masses of 
the population doubtful. The majority of European 
States are, even in time of peace, dependent 
on the importation from other countries of horses, 
machines, coal, and the like, even as they are 
upon that of corn, preserved foods, store cattle, and 
other necessaries of life. The supply of such 
articles by subjects of a neutral State may, there- 
fore, be just as much an untainted business trans- 
action and pacific, as a support of a belligerent. 
The question whether the case amounts to the one 
or the other is therefore to be judged each time 
upon its merits. In practice, the following con- 
ceptions have developed themselves in the course 
of time : 

(a) The purchase of necessaries of life, store Foodituih. 
cattle, preserved foods, etc., in the territory of 

a neutral, even if it is meant, as a matter of 
common knowledge, for the revictualling of the 
Army, is not counted a violation of neutrality, 
provided only that such purchases are equally 
open to both parties. 

(b) The supply of contraband of war, in small Contirtand 
quantities, on the part of subjects of a neutral ^V 
State to one of the belligerents is, so far as it 

bears the character of a peaceable business 
transaction and not that of an intentional aid 
to the war, not a violation of neutrality. No 
Government can be expected to prevent it in 
isolated and trivial cases, since it would im- 
pose on the States concerned quite dispro- 
portionate exertions, and on their citizens 
countless sacrifices of money and time. He 


-who supplies a belligerent with contraband does 
so on his own account and at his own peril, 
and exposes himself to the risk of Prize/ 

Uu«6 tcato. (^) '^^^ supply of war resources on a large scale 

stands in a different position. Undoubtedly 
this presents a case of actual promotion of a 
belligerent's cause, and generally of a warlike 
succour. If, therefore, a neutral State wishes 
to place its detachment from the war beyond 
doubt, and to exhibit it clearly, it must do its 
utmost to prevent such supplies being 
delivered. The instructions to the Customs 
authorities must thus be clearly and precisely 
set out, that on the one hand they notify die 
will of the Government to set their face against 
such wanton bargains with all their might, but 
that on the other, they do not arbitrarily 
restrict and cripple the total home trade. 

The practice In accordance with this view many neutral States, 

*^*^"*' such as Switzerland, Belgium, Japan, etc., did, 

during the Franco-Prussian War, forbid all supply 
or transit of arms to a belligerent, whilst England 
and the United States put no kind of obstacles 
whatsoever in the way of the traffic in arms, and 
contented themselves with drawing the attention 
of their commercial classes to the fact that arms 

^ In the negotiations in 1793, as to the neutrality of North America 
in the Anglo-French War, Jefierson declared : " The right oi the 
citizens to fashion, sell, and export arms cannot be suspended by a 
foreign war, but American citizens pursue it on their own account 
and at their own risk." — Bluntschli, sec. 425 (2). Similarly in the 
famous treaty between Prussia and the United States of September 
loth, 1785, it was expressly fixed in Article 13 that if one of the two 
States was involved in war and the other State should remain 
neutral, the traders of the latter should not be prevented from selling 
arms and munitions to the enemy of the other. Thus the contraband 
articles were not to be confiscated, but the merchants were to be paid 
the value of their goods by the belligerent who had seized them* 
This arrangement was, however, not inserted in the newer treaties 
between Prussia and the Union in 1799 and 1828. 


were contraband, and were therefore exposed to 
capture on the part of the injured belligerent/ 

It is evident, therefore, that the views of this 
particular relation of nations with eadi other still 
need clearing up, and that the unanimity which one 
would desire on this question does not exist 

4. The neutral State may allow the passage or transport Who ing 

of wounded or sick through its territory without S^klnd the 
thereby violating its neutrality ; it has, however, to Woonded. 
watch that hospital trains do not carry with them 
either war personnel or war material with the 
exception of that which is necessary for the care of 
the sick.* 

5. The passage or transport of prisoners of war through who may 

neutral territory is, on the other hand, not to be F^iso^T 

allowed, since this would be an open favouring of <^'War. 

the belligerent who happened to be in a position 

to make prisoners of war on a large scale, while 

his own railways, water highways, and other means 

of transport remained free for exclusively military 


^ In the exchange of despatches between England and Germany 
which arose out of the English deliveries of arms, the Engli^ 
Minister, Lord Granville, declares, in reply to the complaints of the 
German Ambassador in London, Count Bemstorff , that this behaviour 
is authorized by the pre-existing practice, but adds that " with the 
progress of civilization the obligations of neutrals have become more 
stringent, and declares his rea(finess to consult with other nations as 
to the possibility of introducing in concert more stringent rules, 
although his expectations of a practical result are, having regard to 
the declarations of the North-American Government, not very 
hopeful." President Grant had, it is true, already in the Neutrality 
Proclamation of August 22nd, 1870, declared the trade in contra- 
band in the United States to be permitted, but had uttered a warning 
that the export of the same over sea was forbidden by International 
Law. He had later expressly forbidden the American arsenal 
administration to seU arms to a belligerent, an ordinance which was 
of course self-evident and was observed even in England, but he 
did not attempt to prevent dealers taking advantage of the public 
sale of arms out of the State arsenals to buy them for export to the 

* Belgium allowed itself, in August, 1870, owing to the opi>osition 
of France, to be talked into forbidding the transport of wounded 


These are the most important duties of neutral States 
so far as land warfare is concerned. If they are disre- 
garded by the neutral State itself, then it has to give 
satisfaction or compensation to the belligerent who is 
prejudiced thereby. This case may also occur if the 
Government of the neutral State, with the best inten- 
tions to abstain from proceedings which violate neutra- 
ity, has, through domestic or foreign reasons, not the 
power to make its intentions good. If, for example, one 
of the two belligerents by main force marches through 
the territory of a neutral State and this State is not in a 
position to put an end to this violation of its neutrality, 
then the other belligerent has the right to engage the 
enemy on the hitherto neutral territory. 

Rights o( the The duties of neutral States involve corresponding 

oeutiaL rights, such as : 

Theneatrai I. The neutral State has the right to be regarded as 
tobeJeft**** Still at peace with the belligerents as with others, 

alone. ^ jj^^ belligerent States have to respect the inviol- 

Neatni ability of the neutral and the undisturbed exercise 

J^tocyig of its sovereignty in its home affairs, to abstain 

from any attack upon the same, even if the necessity 
of war should make such an attack desirable. 
Neutral States^ therefore, possess also the right 
of asylum for single members or adherents of the 
belligerent Powers, so far as no favour to one or 
other of them is thereby implied. Even the recep- 
tion of a smaller or larger detachment of troops 
which is fleeing from pursuit does not give the 
pursuer the right to continue his pursuit across the 

after the Battle of Sedan, through Belgian territory, and out of 
excessive caution interpreted its decree of August 27th as amounting 
to a prohibition of the transport even of individual wounded. The 
French protest was based on the contention that by the transport of 
wounded through Belgium, the military communication of the 
enemy with Germany was relieved from a serious hindrance. " On 
such a ground" — thinks Bluntschli (p. 434) — "one might set one's 
face against the transport of large numbers but not the transport of 
individuals. These considerations of humanity should decide." 



frontier of the neutral territory. It is the business 
of the neutral State to prevent troops crossing over 
in order to reassemble in the chosen asylum, re- 
form, and sally out to a new attack. 

3. If the territory of a neutral State is trespassed upon The Beatrai 

by one of the belligerent parties for the purpose of ^^tiOT'*c« 
its military operations, then this State has the right its territory 
to proceed against this violation of its territory i^^^L iti 
with all the means in its power and to disarm the ?«*«•" 
trespassers. If the trespass has been committed 
on the orders of the Army Staff, then the State con- 
cerned is bound to give satisfaction and compensa- 
tion; if it has been committed on their own 
responsibility, then the individual offenders can be 
punished as criminals. If the violation of the 
neutral territory is due to ignorance of its frontiers 
and not to evil intention, then the neutral State can 
demand the immediate removal of the wrong, and 
can insist on necessary measures being taken to 
prevent a repetition of such contempts. 

4. Every neutral State can, so long as it itself keeps Neatnuty 

faith, demaild that the same respect shall be paid to ^ i!««w»«* 
it as in time of peace. It is entitled to the presump- 
tion that it will observe strict neutrality and 
will not make use of any declarations or other 
transactions as a cloak for an injustice against 
one belligerent in favour of the other, or will use 
them indifferently for both. This is particularly 
important in regard to Passess, Commissions, and 
credentials issued by a neutral State. ^ 

5. The property of the neutral State, as also that of its iiiapraperty 

citizens, is, even if it lies within the seat of war, ^ n«t»to. 
to be respected so far as the necessity of war 
allows. It can obviously be attacked and even 
destroyed in certain circumstances by the 
belligerents, but only if complete compensation be 
afterwards made to the injured owners. Thus — ^to 

^ Dr. A. W. Hefiter, Das Europdische Volkerrecht der Gegenwart 
(7th ed.)» 1882, p. 320.